Jordan v. Weber
MEMORANDUM AND ORDER: ORDER REFERRING CASE to Magistrate Judge Reona J. Daly. IT IS HEREBY ORDERED that COUNT 4 is subject to further review against Defendant C/O WEBER. This claim encompasses a First Amendment retaliation claim and an Eighth Amendm ent deliberate indifference claim against this defendant. With regard to COUNT 4, the Clerk of Court shall prepare for Defendant WEBER: (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of a Summons), and (2) Form 6 (Waiver of Service of Summons). Signed by Judge David R. Herndon on 8/10/2017. (tkm)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
Case No. 17-cv-624-DRH
MEMORANDUM AND ORDER
HERNDON, District Judge:
Plaintiff Pierre Jordan, an inmate who is currently incarcerated at
Lawrence Correctional Center (Lawrence), brings this civil rights action pursuant
to 42 U.S.C. § 1983 for deprivations of his constitutional rights at Lawrence. The
instant case was severed from Jordan v. Lamb, No. 17-cv-00207-SMY-RHD (S.D.
Ill.) (original case). (Doc. 1, instant case). This case focuses on a single claim
against Officer Weber for violating Plaintiff’s rights under the Eighth Amendment
by verbally and sexually harassing him, making intimidating remarks to him,
stealing from him, and making retaliatory threats toward him, all of which
culminated in Plaintiff’s attempted suicide on July 11, 2016. (“Count 4,” original
case). (Doc. 1, p. 6). In connection with this claim, Plaintiff seeks monetary relief
and a prison transfer. 1 (Doc. 2, pp. 21-22).
In the request for relief, Plaintiff generally seeks a prison transfer but does not explain
why. The original Complaint has been severed into numerous actions. The instant case
only addresses one of his severed claims. To the extent Plaintiff would like to request
urgent relief in connection with Count 4, he should file a separate motion for a temporary
Count 4 is now subject to preliminary review 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
(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
An action or claim is frivolous if “it lacks an arguable basis either in law or in
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 of the pro se complaint are to be liberally construed.
Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).
According to the Complaint, Officer Weber engaged in a campaign of
retaliation and harassment toward Plaintiff after he filed numerous grievances to
restraining order and/or preliminary injunction pursuant to Rule 65(a)-(b) of the Federal
Rules of Civil Procedure. He may do so at any time during the pending action.
complain about the officer in 2016. (Doc. 2, pp. 7-8, 10, 16, 21, 35-37). On or
around March 27, 2016, Plaintiff filed a grievance complaining of Officer Weber’s
“racially motivated unethical staff misconduct.”
(Doc. 2, p. 7).
He also filed
several other grievances against Officer Weber during the next four months. (Doc.
2, p. 8).
Thereafter, the officer conducted one or more allegedly unauthorized and
retaliatory shakedowns of Plaintiff’s cell. (Doc. 2, p. 8). The officer also issued
Plaintiff a disciplinary ticket for possession of psychotropic medication, even after
his cellmate admitted that the medication belonged to him. (Doc. 2, pp. 8, 21).
The officer instructed Plaintiff’s former cellmate to pack up Plaintiff’s personal
property, which violated prison policy and resulted in the loss of property valued
at $176.01. (Doc. 2, pp. 8, 21, 37). Officer Weber would not allow Plaintiff to
visit with his sister on May 1, 2016, and ultimately took steps to impose
restrictions on Plaintiff’s visitation privileges. (Doc. 2, pp. 7-8).
Plaintiff blames Officer Weber for his increased feelings of depression and
(Doc. 2, p. 16).
He requested an investigation of Officer
Weber’s harassing and threatening conduct, to no avail. (Doc. 2, p. 35). Plaintiff
then attempted to commit suicide and was admitted to suicide watch from
July 11-13, 2016. (Doc. 2, p. 36).
Nevertheless, the harassment continued.
On October 31, 2016, Plaintiff
alleges that Officer Weber “invaded” his personal space as he “had done many . . .
times before.” (Doc. 2, p. 10). The officer spoke to Plaintiff in a “menacing” and
“threatening” tone. Id. The officer said, “You think your grievances are enough to
get me fired. Wherever I go I run shit.” Id. Officer Weber proceeded to “taunt”
Plaintiff, by asking him if he had found his Walkman and cassette tapes yet. The
officer then said, “Oh I forgot I stole them.” Id. He then walked away, laughing.
Id. Plaintiff did not respond. Id.
When other inmates asked why Officer Weber was no longer working in the
cell house, the officer pointed at Plaintiff and said that it was because of the
grievances Plaintiff filed.
(Doc. 2, p. 10).
Officer Weber told Plaintiff’s fellow
inmates that Plaintiff would have to “leave this house,” if they wanted him to
return. Id. Plaintiff alleges that these statements were meant to provoke other
inmates to harm him. Id. In addition, Weber told Plaintiff to stop touching the
mental health professionals, 2 or the officer would “make sure” Plaintiff was
“touched.” Id. Plaintiff interpreted this as a thinly veiled threat to have other
correctional officers assault Plaintiff. Id.
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 deems it appropriate to re-characterize Count 4 in the
Memorandum and Severance Order as follows:
Count 1 -
Weber violated Plaintiff’s rights under the First and/or
Eighth Amendments by verbally and sexually harassing
Plaintiff, making intimidating remarks to him, stealing
Plaintiff indicates that he had a sexual relationship with a mental health professional
named in the original Complaint. The claims against that individual are not part of this
from him, and making retaliatory threats toward him
after Plaintiff filed grievances to complain about the
officer, culminating in Plaintiff’s suicide attempt on July
(Doc. 2, p. 6). The parties and the Court will use this designation in all future
pleadings and orders, unless otherwise directed by a judicial officer of this Court.
The designation of this claim does not constitute an opinion regarding its merit.
The Complaint articulates a colorable claim of cruel and unusual
punishment under the Eighth Amendment and retaliation under the First
Amendment against Officer Weber.
In its Memorandum and Severance Order
(Doc. 1, instant case), the Court discussed the Eighth Amendment claim at length.
(Doc. 1, pp. 10-11) (citing Beal v. Foster, 803 F.3d 356, 358 (7th Cir. 2015);
Dobbey v. Ill. Dep’t of Corrections, 574 F.3d 443, 446 (7th Cir. 2009); DeWalt v.
Carter, 224 F.3d 607, 612 (7th Cir. 2000).
This Court now finds that the
allegations in the Complaint support a cruel and unusual punishment claim
against Officer Weber for screening purposes. Id.
Count 4 also encompasses a First Amendment retaliation claim against this
defendant. Prison officials may not retaliate against an inmate for exercising his
First Amendment rights, which includes the right to file a grievance. See Gomez
v. Randle, 680 F.3d 859, 866 (7th Cir. 2012); Bridges v. Gilbert, 557 F.3d 541,
546 (7th Cir. 2009); Pearson v. Wellborn, 471 F.3d 732, 740 (7th Cir. 2006);
Zimmerman v. Tribble, 226 F.3d 568, 573 (7th Cir. 2000); DeWalt, 224 F.3d at
618. A First Amendment retaliation claim arises when a plaintiff establishes that:
(1) he engaged in activity protected by the First Amendment; (2) he suffered a
deprivation that would likely deter First Amendment activity in the future; and
(3) the First Amendment activity was “at least a motivating factor” in the
defendant’s decision to take the retaliatory action.
Bridges, 557 F.3d at 546
(citing Woodruff v. Mason, 542 F.3d 545, 551 (7th Cir. 2008); Massey v. Johnson,
457 F.3d 711, 716 (7th Cir. 2006)). A complaint states a retaliation claim when it
sets forth “a chronology of events from which retaliation may plausibly be
inferred.” Zimmerman, 226 F.3d at 573 (citation omitted).
The Complaint sets forth allegations that support a plausible retaliation
claim against Officer Weber. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972)
(court must liberally construe pro se pleadings). After Officer Weber learned that
Plaintiff filed one or more grievances to complain about him, the officer engaged
in a pattern of harassing conduct toward Plaintiff.
(Doc. 2, pp. 7-8, 21, 37).
Among other things, the officer conducted one or more unauthorized cell
shakedowns, issued him a ticket for possession of psychotropic medications his
cellmate admittedly possessed, directed another prisoner to pack up Plaintiff’s
property, taunted Plaintiff about property that was lost or stolen in the process,
denied him visitation with his sister for no alleged reason, encouraged other
inmates to harm Plaintiff, and also threatened him with physical harm. Id. Even
if these acts do not support independent constitutional claims against the
defendant, the chronology of events supports a First Amendment retaliation claim
against the officer. See Zimmerman, 226 F.3d at 574 (reversing district court’s
§ 1915A dismissal because inmate’s allegations established that “the exercise of
his [First Amendment] right was closely followed by the retaliatory act”).
Accordingly, Count 4 shall also include a First Amendment claim of retaliation.
The Court discerns no other basis for proceeding against this defendant.
Plaintiff refers, in vague or conclusory terms, to other potential claims against
Officer Weber, such as a Fourteenth Amendment due process or equal protection
claim. However, he offers insufficient allegations to support these claims, or any
others that are not already recognized herein. Twombly, 550 U.S. at 570
(complaint must plead “enough facts to state a claim to relief that is plausible on
All claims not recognized herein should be considered dismissed
without prejudice from this action.
IT IS HEREBY ORDERED that COUNT 4 is subject to further review
against Defendant C/O WEBER.
This claim encompasses a First Amendment
retaliation claim and an Eighth Amendment deliberate indifference claim against
With regard to COUNT 4, the Clerk of Court shall prepare for Defendant
WEBER: (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), Complaint (Doc. 2), and this Memorandum and Order to 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
If the Defendant 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.
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 (Doc. 2) and shall not waive filing a reply pursuant to 42 U.S.C.
Pursuant to Local Rule 72.1(a)(2), this action is REFERRED to a United
States Magistrate Judge for further pre-trial proceedings.
Further, this entire matter is hereby REFERRED to a United States
Magistrate Judge 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, even though his application to proceed in forma pauperis was granted.
See 28 U.S.C. § 1915(f)(2)(A).
Plaintiff is ADVISED that at the time application was made under 28 U.S.C.
§ 1915 for leave to commence this civil action without being required to prepay
fees and costs or give security for the same, the applicant and his or her attorney
were deemed to have entered into a stipulation that the recovery, if any, secured
in the action shall be paid to the Clerk of the Court, who shall pay therefrom all
unpaid costs taxed against Plaintiff and remit the balance to Plaintiff. Local Rule
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.
Digitally signed by
Judge David R.
DATED: August 10, 2017
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?