James v. Baldwin et al

Filing 7

MEMORANDUM AND ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Signed by Judge Nancy J. Rosenstengel on 7/19/2017. (jaj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
NED JAMES, # K-91930,
Plaintiff,
vs.
JOHN BALDWIN,
KIM BUTLER,
C/O GARNER,
C/O BARKER,
NANCY TOVAR,
and MINH T. SCOTT,
Defendants.

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Case No. 17-cv-623-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff, an inmate of the Illinois Department of Corrections (“IDOC”) currently incarcerated
at Pontiac Correctional Center (“Pontiac”), has brought this pro se civil rights action pursuant to 42
U.S.C. § 1983. His claims arose while he was confined at Menard Correctional Center (“Menard”).
Plaintiff claims that he was sexually assaulted and denied due process in the proceedings over a
disciplinary ticket. He also raises a state law tort claim based on the assault. The Complaint is now
before the Court for a preliminary review pursuant to 28 U.S.C. § 1915A.
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
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(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, the Court finds that some of Plaintiff’s claims survive threshold
review under § 1915A.
The Complaint
On June 14, 2016, Plaintiff was ordered by unidentified Menard officers to terminate the
telephone call he was on because he was going to segregation. (Doc. 1, p. 3). He was not given a
reason for this move. When he was placed in punitive segregation on that day, Plaintiff went on crisis
watch. He told the crisis watch officer to “put down his witness which was Plaintiff[’s] call log to his
pin number.” Id.
Fifteen days later, on June 29, 2016, the Adjustment Committee held a hearing on Plaintiff’s
disciplinary ticket. Plaintiff objected because the hearing was not held within the 14-day time limit
required by IDOC rules, and he asked for the ticket to be expunged. The Committee declined to
expunge the ticket and found Plaintiff guilty of (107) sexual misconduct. (Doc. 1, p. 4). The hearing
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report was falsified to state that the hearing was held on June 21, 2016. Plaintiff’s telephone call log
was never investigated, and his witness was not called. He blames Lieutenant Scott for these failures.
(Doc. 1, p. 6).
Plaintiff filed a grievance over the disciplinary action. The Administrative Review Board
agreed with Plaintiff’s assertion that the hearing had actually been held on June 29 hearing date, but
nonetheless denied his grievance. Plaintiff claims that these events violated his right to due process.
On July 8, 2016, C/O Garner and C/O Barker came to Plaintiff’s cell, handcuffed him, and
told him he was “moving behind the cell door on 6 Gallery.” (Doc. 1, pp. 4-5). While Plaintiff’s
hands were cuffed, Garner pulled down Plaintiff’s boxers and stuck his fingers in Plaintiff’s anus
several times. Plaintiff was yelling and screaming during this incident, but nobody came to his
assistance. Plaintiff immediately requested medical attention, but he was not allowed to see a nurse
until several days later. (Doc. 1, p. 5).
Based on the incident with Garner and Barker, Plaintiff asserts an Eighth Amendment claim
for cruel and unusual punishment, as well as an Illinois state law claim for assault and battery. (Doc.
1, pp. 5-6).
Plaintiff states that he suffers from a serious mental illness (he does not elaborate further). He
claims that due to this condition, he has suffered mental anguish and loss of sleep following the
alleged assault and due process violation. (Doc. 1, pp. 4, 6).
Plaintiff seeks monetary damages and an order of protection from Menard staff. (Doc. 1,
p. 9).
Merits Review Pursuant to 28 U.S.C. § 1915A
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
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Complaint but not addressed in this Order should be considered dismissed without prejudice.
Count 1:

Fourteenth Amendment due process claim against Scott for failing to
call Plaintiff’s witness or investigate his call log in connection with
Plaintiff’s disciplinary hearing of June 29, 2016, and for failing to
hold the hearing within 14 days;

Count 2:

Eighth Amendment claims against Garner for sexually assaulting
Plaintiff on July 8, 2016, against Barker for failing to intervene to
stop the assault and against Garner and Barker for refusing Plaintiff’s
request for medical attention following the assault;

Count 3:

Illinois state law claim for assault and battery against Garner and
Barker based on the sexual assault incident of July 8, 2016.

As explained below, Count 1 shall be dismissed for failure to state a claim upon which relief
may be granted. Counts 2 and 3 shall proceed in this action for further review.
Dismissal of Count 1 – Due Process
In Wolff v. McDonnell, 418 U.S. 539 (1974), the Supreme Court set out the minimal
procedural protections that must be provided to a prisoner in disciplinary proceedings in which the
prisoner loses good time, is confined to disciplinary segregation, or is otherwise subjected to some
comparable deprivation of a constitutionally protected liberty interest. Id. at 556-572.
Wolff required that inmates facing disciplinary charges for misconduct be accorded
[1] 24 hours’ advance written notice of the charges against them; [2] a right to call
witnesses and present documentary evidence in defense, unless doing so would
jeopardize institutional safety or correctional goals; [3] the aid of a staff member or
inmate in presenting a defense, provided the inmate is illiterate or the issues complex;
[4] an impartial tribunal; and [5] a written statement of reasons relied on by the
tribunal. 418 U.S. at 563-572.
Hewitt v. Helms, 459 U.S. 460, 466 n.3 (1983). The Supreme Court has also held that due process
requires that the findings of the disciplinary tribunal must be supported by some evidence in the
record. Superintendent v. Hill, 472 U.S. 445, 455-56 (1985); McPherson v. McBride, 188 F.3d 784,
786 (7th Cir. 1999). However, even a meager amount of supporting evidence is sufficient to satisfy
this inquiry. Scruggs v. Jordan, 485 F.3d 934, 941 (7th Cir. 2007).
Here, the Complaint indicates a possible violation of the due process standards set forth in
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Wolff, where Plaintiff requested a witness who was not called during the hearing. Additionally, no
investigation was made of Plaintiff’s call log documentation. Plaintiff fails to explain, however, how
the outcome of the disciplinary action might have been different if the witness and call log had been
made available during his June 29 hearing. From Plaintiff’s description, the only matter in dispute
that could have been clarified by the call log and witness was the date on which Plaintiff received
notice of the disciplinary action (June 14, 2016), which would have shown that the Adjustment
Committee hearing held on June 29 fell outside the prescribed 14-day time limit. Plaintiff does not
indicate that the call log or witness would have provided evidence that he was not guilty of the
disciplinary charge itself.
The fact that Plaintiff’s hearing was not held within the 14 days prescribed by state law and
procedure does not amount to a constitutional violation of his due process rights, even if the delay
violated the state rules. A federal court does not enforce state law or regulations. Archie v. City of
Racine, 847 F.2d 1211, 1217 (7th Cir. 1988) (en banc), cert. denied, 489 U.S. 1065 (1989);
Pasiewicz v. Lake Cnty. Forest Preserve Dist., 270 F.3d 520, 526 (7th Cir. 2001). Therefore, the
Complaint fails to state a constitutional claim upon which relief may be granted on the basis of the
delayed hearing.
Even if the call log or witness would have provided some exculpatory evidence regarding the
disciplinary charge against Plaintiff, this would not support a due process claim so long as the
Committee had some evidence before it to support the finding of guilt. See Scruggs v. Jordan, 485
F.3d 934, 941 (7th Cir. 2007) (“once the meager threshold has been crossed our inquiry ends”). The
Complaint does not disclose what evidence was relied upon to find Plaintiff guilty, nor does Plaintiff
include a copy of the disciplinary ticket or the Adjustment Committee’s report. Thus, the Complaint
does not support a conclusion that Plaintiff’s due process rights were violated by the absence of his
call log or witness from the proceeding.
Finally, Plaintiff does not reveal the length of time he was confined in punitive segregation as
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a result of the disciplinary action, or whether he received any other punishment. Nor does he mention
the conditions of his confinement while he remained in punitive segregation.
Even if Plaintiff’s hearing had violated the Wolff procedural standards, a prisoner cannot
maintain a constitutional claim for deprivation of a liberty interest without due process unless certain
narrow requirements are met. Overall, the conditions of the disciplinary segregation must have
imposed an “atypical and significant hardship” on the inmate when compared to the conditions he
would have faced in nondisciplinary segregation. Sandin v. Conner, 515 U.S. 472, 484 (1995); see
also Wagner v. Hanks, 128 F.3d 1173, 1175 (7th Cir. 1997). In order to assess whether a plaintiff
was subjected to atypical and significant hardships, courts consider both the duration of the punitive
segregation term and the conditions of that confinement. Marion v. Columbia Corr. Inst., 559 F.3d
693, 697-98 (7th Cir. 2009). For relatively short periods of disciplinary segregation, inquiry into
specific conditions of confinement is unnecessary, and the claim would be subject to dismissal. See
Lekas v. Briley, 405 F.3d 602, 612 (7th Cir. 2005) (56 days); Thomas v. Ramos, 130 F.3d 754, 761
(7th Cir. 1997) (70 days) (“a relatively short period when one considers his 12 year prison
sentence”). In these cases, the short duration of the disciplinary segregation forecloses any due
process liberty interest regardless of the conditions. See Marion, 559 F.3d at 698 (“we have affirmed
dismissal without requiring a factual inquiry into the conditions of confinement”). Only if the
disciplinary segregation period was sufficiently long and if the conditions of confinement were
unusually harsh, may an inmate maintain a civil rights claim for deprivation of a liberty interest
without due process.
Here, because the Complaint does not demonstrate a procedural flaw of constitutional
dimension in the disciplinary hearing, and because Plaintiff has provided no information on the
duration or conditions of his confinement in punitive segregation, Plaintiff has failed to state a claim
upon which relief may be granted with respect to Count 1. This due process claim shall therefore be
dismissed without prejudice.
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Count 2 – Sexual Assault & Deliberate Indifference to Medical Needs
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 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).
Plaintiff’s allegation that Garner forcibly penetrated Plaintiff’s anus with his finger states an
Eighth Amendment claim that merits further review. Furthermore, even if Garner’s action was meant
to be a search for contraband, physical touching that goes beyond what is necessary to accomplish a
search may violate the Constitution. “An unwanted touching of a person’s private parts, intended to
humiliate the victim or gratify the assailant’s sexual desires, can violate a prisoner’s constitutional
rights whether or not the force exerted by the assailant is significant.” Washington v. Hively, 695
F.3d 641, 643 (7th Cir. 2012) (citing Mays v. Springborn, 575 F.3d 643, 650 (7th Cir. 2009);
Calhoun v. DeTella, 319 F.3d 936, 939-40 (7th Cir. 2003); Farmer v. Perrill, 288 F.3d 1254, 1260
(10th Cir. 2002); Freitas v. Ault, 109 F.3d 1335, 1338 (8th Cir. 1997); Boddie v. Schneider, 105 F.3d
857, 860-61 (2d Cir. 1997)). In fact, sexual offenses may involve no touching at all. Washington, 695
F.3d at 643. In this case, the Complaint suggests that whatever was Garner’s intent, his actions may
have crossed the line into sexual abuse. Count 2 shall therefore proceed against Garner.
As to Barker, who was present during the incident but did nothing to deter Garner’s actions
or assist Plaintiff, an officer who witnesses an incident of excessive force or assault but fails to
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intervene may be equally as liable as the perpetrator. See Byrd v. Brishke, 466 F.2d 6, 11 (7th Cir.
1972); see also Lanigan v. Vill. of E. Hazel Crest, 110 F.3d 467, 477 (7th Cir. 1997); Yang v. Hardin,
37 F.3d 282, 285 (7th Cir. 1994) (collected cases). The claim against Barker thus survives scrutiny
under § 1915A as well.
Finally, the Seventh Circuit has held that a guard who uses excessive force on a prisoner has
“a duty of prompt attention to any medical need to which the beating might give rise[.]” Cooper v.
Casey, 97 F.3d 914, 917 (7th Cir. 1996). Thus both Garner, who perpetrated the alleged assault, and
Barker, who failed to intervene to stop it, and then prevented Plaintiff from getting immediate
medical attention, may be found liable for deliberate indifference to Plaintiff’s need for medical care.
At this stage, it cannot be determined whether the actions of Barker and Garner constituted deliberate
indifference to a serious medical need of Plaintiff. Therefore, this portion of Plaintiff’s claim against
Garner and Barker shall also go forward under Count 2.
Count 3 – Assault & Battery State Tort Claim
Under Illinois state law, “[a] battery occurs when one ‘intentionally or knowingly without
legal justification and by any means, (1) causes bodily harm to an individual or (2) makes physical
contact of an insulting or provoking nature with an individual.’” Smith v. City of Chicago, 242 F.3d
737, 744 (7th Cir. 2001) (quoting 720 ILL. COMP. STAT. 5/12–3(a)). Based on the factual allegations
in the Complaint, Garner’s actions fall within the scope of a battery claim.

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. HoChunk 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)).
Here, Plaintiff’s potential state law claim in Count 3 is based on the identical set of facts that
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support his civil rights claim in Count 2. Therefore, supplemental jurisdiction over Count 3 is
appropriate at this time.
The state law tort claim against Garner in Count 3 shall thus proceed for further
consideration. As Barker appears to have had some level of participation in the incident, the claim
against him also survives dismissal at this early stage, so Count 3 shall proceed against Barker as
well.
Dismissal of Additional Defendants
Plaintiff lists IDOC Director Baldwin, Warden Butler, and C/O Tovar among the Defendants,
but he fails to mention any of these individuals in his 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).
Furthermore, Butler and Baldwin cannot be held liable for the alleged violations of Plaintiff’s
constitutional rights merely because they are, respectively, the chief administrator of the prison and
the Director of IDOC. “The doctrine of respondeat superior does not apply to § 1983 actions; thus to
be held individually liable, a defendant must be ‘personally responsible for the deprivation of a
constitutional right.’” Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001) (quoting Chavez v.
Ill. State Police, 251 F.3d 612, 651 (7th Cir. 2001)). See also Monell v. Dep’t of Soc. Servs., 436 U.S.
658 (1978); Eades v. Thompson, 823 F.2d 1055, 1063 (7th Cir. 1987).
Accordingly, Baldwin, Butler, and Tovar shall be dismissed from this action without
prejudice.
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Pending Motion
Plaintiff’s motion for recruitment of counsel (Doc. 2) shall be referred to United States
Magistrate Judge Wilkerson for further consideration.
Disposition
COUNT 1 is DISMISSED without prejudice for failure to state a claim upon which relief
may be granted. BALDWIN, BUTLER, TOVAR, and SCOTT are DISMISSED from this action
without prejudice.
The Clerk of Court shall prepare for GARNER and BARKER: (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
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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).
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, which shall include a determination on
the pending motion for recruitment of counsel (Doc. 2).
Further, this entire matter shall be REFERRED to United States Magistrate Judge Wilkerson
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: July 19, 2017

__________________________
NANCY J. ROSENSTENGEL
United States District Judge

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