Knox v. Butler et al

Filing 4

ORDER REFERRING CASE to Magistrate Judge Reona J. Daly. Signed by Judge Staci M. Yandle on 10/20/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TED KNOX,
#N92676,
Plaintiff,
vs.
WARDEN BUTLER,
WARDEN WATKINS,
SUSLER,
BEST,
WARDEN BROOKS,
DR. JOHN TROST,
and WARDEN LASHBROOKS,
Defendants.

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Case No. 17-cv-00572-SMY

MEMORANDUM AND ORDER
YANDLE, District Judge:
Plaintiff Ted Knox, an inmate who is currently incarcerated at Menard Correctional
Center (“Menard”), brings this civil rights action pursuant to 42 U.S.C. § 1983. (Doc. 2).
Plaintiff originally brought his claims in Knox v. Butler, et al., Case No. 17-cv-00494-SMY
(S.D. Ill.) (“prior action”) on May 10, 2017. However, the Court severed that action into several
separate cases pursuant to a Memorandum and Order dated May 31, 2017. (Doc. 1). The instant
case addresses the claims designated as Count 4, which includes an Eighth Amendment
deliberate indifference claim and a First Amendment retaliation claim against Defendants Butler,
Watkins, Susler, Best, Brooks, Trost, and Lashbrooks for exposing Plaintiff to environmental
tobacco smoke between April 2015 and December 2016. (Doc. 2, pp. 9-11).
This matter is now before the Court for a preliminary review of Count 4 pursuant to
28 U.S.C. § 1915A, which provides:

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(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 Complaint
Plaintiff alleges that he was moved to Menard’s North-2 Cell House on February 20,
2015, which he describes as a disciplinary housing unit. (Doc. 2, p. 14). This was despite his
classification as an A-grade, medium security, and low aggression inmate. Id. He was placed in
Cell #123 on 1-Gallery. Id. He was also informed that the gallery was reclassified for general
population housing. Id.
Prison officials allegedly subjected Plaintiff to “extreme hand-cuffing” procedures in the
North-2 Cell House. (Doc. 2, p. 14). Plaintiff was cuffed every time he left the cell. Id. This
procedure was not used in other units where Plaintiff was previously housed. Id.
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On or around April 1, 2015, Plaintiff first noticed the strong odor of environmental
tobacco smoke (“ETS”). (Doc. 2, p. 14). The windows in the North-2 Cell House were opened
on that date. Id. One of these windows was located directly across from Plaintiff’s cell, and he
could see prison guards smoking outside of the window. Id. Fumes filled the air. Id.
Plaintiff filed regular complaints about the ETS with various Menard officials, including
Defendants Butler, Watkins, Susler, Best, Brooks, Lashbrooks and Trost. (Doc. 2, p. 14).
Plaintiff notified these officials that ETS entered his cell through the window and lingered. Id.
He also informed them that his right lung once collapsed and remained partially collapsed after
surgery. Id. He worried that ETS exposure would aggravate his respiratory condition in the
future. Id.
On June 22, 2015, Plaintiff told Defendant Butler that ETS was entering his cell through
the open window and vents in his cell, and that it was allegedly causing him to suffer from
severe headaches, dizziness and shortness of breath. (Doc. 2, p. 15). Plaintiff asked Defendant
Butler to move him to another cell located in a smoke-free environment. Id. Defendant Butler
told Plaintiff that she did not have time to discuss a move. Id. She explained that the North-2
Cell House would be empty if she moved everyone who had complaints about it. (Doc. 2, pp.
14-15).
On July 14, 2015, Plaintiff again complained directly to Defendant Butler. (Doc. 2, p.
15). He indicated that the ETS was placing his future health in danger. Id. Plaintiff also
informed Defendant Butler that Illinois Department of Correction’s rules and regulations require
the prison to be a smoke-free environment. Id. Defendant Butler threatened to move Plaintiff to
segregation if he continued to write her or stop her with complaints. Id.

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Plaintiff instead complained to other prison officials, including Defendants Brooks,
Lashbrooks, Susler and Best. (Doc. 2, p. 15). He informed each of them of his pre-existing
conditions, which included an enlarged heart, partially collapsed lung, and diabetes. Id. He
explained that ETS would only aggravate these conditions. Id. The officials ignored Plaintiff’s
complaints. Id.
Plaintiff then filed a written complaint about the ETS with the Illinois Department of
Public Health, the John Howard Association of Illinois and Governor Rauner. (Doc. 2, p. 15).
He asked Defendant Watkins to move him away from the ETS on August 2, 2015, after
complaining that it was causing severe headaches, dizziness, and heavy coughing.

Id.

Defendant Watkins refused to transfer him anywhere except segregation and told him to file a
grievance instead.

Id.

Plaintiff again complained to Defendants Butler and Watkins on

August 3, 2015. (Doc. 2, p. 15). They ignored him. (Doc. 2, p. 16).
From August 1, 2015 until September 14, 2015, Plaintiff pleaded with Defendant Susler
to close the windows to reduce the ETS. (Doc. 2, p. 16). However, Susler refused and warned
him to stop complaining. Id.
Plaintiff filed a grievance to address the issue on September 14, 2015. (Doc. 2, p. 16).
However, it was denied at the institutional level on December 3, 2015. Id. The Administrative
Review Board (“ARB”) also denied his appeal on April 11, 2016. (Doc. 2, p. 17). Plaintiff
continued to complain. Id.
When Plaintiff discussed his concerns with Doctor Trost, the defendant indicated that he
was “well aware” of Plaintiff’s past complaints. (Doc. 2, p. 17). However, after reviewing
Plaintiff’s x-rays, Doctor Trost told Plaintiff that he would not recommend a cell transfer or a
permit for an extra fan. Id. He would only issue an extra fan permit after Plaintiff had a heart

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attack. Id. Because Plaintiff continued having trouble with breathing, coughing, headaches and
burning eyes, he continued to plead for a permit. Id. In response, Doctor Trost told Plaintiff that
“he didn’t care about this place (Menard) anymore [because] all you inmates do is cry about
everything.” (Doc. 2, p. 17).
Plaintiff filed another timely grievance on July 22, 2016, and it was denied on August 12,
2016. (Doc. 2, p. 17). He filed a timely appeal on August 29, 2016, and it was eventually denied
on March 3, 2017. Id. However, on December 15, 2016, Plaintiff was finally moved to the
hospice care housing unit after a correctional officer told him that staff was tired of his
complaints and grievances. (Doc. 2, p. 18). Plaintiff

now

seeks

monetary

relief

against

Defendants for violating his rights under the First and Eighth Amendments. (Doc. 2, p. 18).
Discussion
This severed case addresses the following claims, originally identified as “Count 4” and
renumbered for ease of reference as follows:
Count 1 -

Eighth Amendment deliberate indifference claim against Butler, Watkins,
Susler, Best, Brooks, Trost and Lashbrooks for endangering Plaintiff’s
present and future health by exposing him to environmental tobacco
smoke between April 2015 and December 2016.

Count 2 -

First Amendment retaliation claim against Butler, Watkins, Susler, Best,
Brooks, Trost and Lashbrooks for threatening Plaintiff with segregation
when he complained about tobacco smoke exposure between April 2015
and December 2016.

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 claims does not
constitute an opinion regarding their merits. Any claims that are not identified above but are

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encompassed within “Count 4” are considered dismissed without prejudice from this
action. 1
Count 1
The treatment that a prisoner receives and the conditions under which he is confined are
subject to Eighth Amendment scrutiny. Helling v. McKinney, 509 U.S. 25, 32 (1983). The
Eighth Amendment protects prisoners against cruel and unusual punishment. U.S. CONST.,
amend. VIII. Prison conditions that deprive inmates of basic human needs, such as inadequate
nutrition, health, or safety, may constitute cruel and unusual punishment. Rhodes v. Chapman,
452 U.S. 337, 346 (1981); see also James v. Milwaukee Cnty., 956 F.2d 696, 699 (7th Cir. 1992).
Eighth Amendment protections extend to an inmate’s present and future health. Helling,
509 U.S. at 33. Prison officials cannot hold inmates in unsafe conditions simply because the
harm to their health has not yet occurred. Id. (Youngberg v. Romeo, 457 U.S. 307, 315-16
(1982)). A prison official may be liable for deliberate indifference under the Eighth Amendment
if the official knows of and disregards an excessive risk to an inmate’s present or future health or
safety. Farmer v. Brennan, 511 U.S. 825, 836-37 (1994). See, e.g., Turley v. Bedinger, 542 F.
App’x 531 (7th Cir. 2013) (confinement in a small cell with excessive ETS exposure and lack of
proper ventilation stated Eighth Amendment claim); Powers v. Snyder, 484 F.3d 929, 932-33
(7th Cir. 2007) (same). The allegations in the Complaint suggest that the defendants exhibited
deliberate indifference to Plaintiff’s present and future health.
Plaintiff claims that he was exposed to unusually high levels of ETS because of his
placement in a poorly ventilated cell near a window where prison officials routinely smoke.

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This includes any Eighth Amendment claim Plaintiff intended to bring against the defendants for
“extreme handcuffing” or for deliberate indifference to his medical needs. He did not specifically identify
or develop either of these claims in the Complaint. Both are considered dismissed without prejudice from
this action.

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(Doc. 2, pp. 14-18).

He allegedly informed each defendant about his preexisting health

conditions and requested a transfer to a smoke-free environment, but they denied or ignored his
requests from April 2015 until December 2016.

Id.

These allegations support an Eighth

Amendment claim against all of the defendants for subjecting Plaintiff to an excessive risk of
harm to his future health by exposing him to unusually high levels of ETS at Menard.
Plaintiff also notified Defendants Butler, Watkins and Trost that he was presently
suffering from headaches, dizziness, breathing difficulties, and/or coughing because of his
excessive exposure to ETS. (Doc. 2, pp. 14-18). He asked each of these defendants to take steps
to reduce his ETS exposure and to transfer him to a smoke-free environment. Id. They refused.
Id. These allegations support an Eighth Amendment claim against Defendants Butler, Watkins
and Trost for subjecting Plaintiff to an excessive risk of harm to his present health by exposing
him to unusually high levels of ETS at Menard.
Accordingly, Count 1 shall proceed against Defendants Butler, Watkins, and Trost under
the present and future health rubrics. Count 1 shall proceed against Defendants Susler, Best,
Brooks, and Lashbrooks under the future health rubric only.
Count 2
Prison officials may not retaliate against inmates for filing grievances or otherwise
complaining about their conditions of confinement. See, e.g., Gomez v. Randle, 680 F.3d 859,
866 (7th Cir. 2012); Walker v. Thompson, 288 F.3d 1005 (7th Cir. 2002); DeWalt v. Carter, 224
F.3d 607 (7th Cir. 2000); Babcock v. White, 102 F.3d 267 (7th Cir. 1996); Cain v. Lane, 857
F.2d 1139 (7th Cir. 1988). To establish a prima facie case of retaliation, an inmate must
demonstrate that (1) he engaged in activity protected by the First Amendment; (2) he suffered a
deprivation likely to deter protected speech; and (3) his protected speech was a motivating factor

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in the defendants’ actions. Antoine v. Ramos, 497 F. App’x 631, 634 (7th Cir. 2012) (citations
omitted); Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009) (internal citations omitted). With
regard to the third element, the plaintiff must show the existence of “a causal link between the
protected act and the alleged retaliation.” Woodruff v. Mason, 542 F.3d 545, 551(7th Cir. 2008)
(internal citations omitted).
Plaintiff alleges that Defendants Butler and Watkins threatened him with segregation and
that Defendant Susler told him to stop complaining, in response to the grievances he submitted
regarding his excessive ETS exposure. (Doc. 2, pp. 14-18). He nevertheless continued to file
grievances without being placed in segregation or being punished for doing so. Bridges, 557
F.3d at 546, 553 (plaintiff must suffer a deprivation “that would likely deter First Amendment
activity in the future” and would deter “‘a person of ordinary firmness’” from exercising his or
her First Amendment rights).

Moreover, he was eventually transferred to a smoke-free

environment because of his numerous complaints, and Plaintiff does not allege that his transfer
was delayed in retaliation for his complaints. (Doc. 2, pp. 14-18). As such, the Complaint does
not state a viable retaliation claim against any of the defendants, including Defendant Butler,
Watkins or Susler. Count 2 shall therefore be dismissed without prejudice for failure to state a
claim upon which relief may be granted.
Disposition
IT IS HEREBY ORDERED that COUNT 2 is DISMISSED without prejudice for
failure to state a claim upon which relief may be granted against the defendants.
IT IS ORDERED that COUNT 1 survives screening and is subject to further review
against Defendants BUTLER, WATKINS, SUSLER, BEST, BROOKS, TROST and
LASHBROOKS.

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With respect to COUNT 1, the Clerk of Court shall prepare for Defendants BUTLER,
WATKINS, SUSLER, BEST, BROOKS, TROST and LASHBROOKS: (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 Memorandum and
Severance Order (Doc. 1), the Complaint (Doc. 2) and this Memorandum and 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
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 Reona J. Daly for further pre-trial proceedings.
Further, this entire matter is hereby REFERRED to United States Magistrate Judge Daly
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.

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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. 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).
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: October 20, 2017
s/ STACI M. YANDLE
District Judge
United States District Court

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