Jordan v. Gaye et al
MEMORANDUM AND ORDER severing case. Signed by Judge Staci M. Yandle on 6/13/2017. (jaj)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
PIERRE JORDAN, #M07905
SGT. HARPER, and
Case No. 17−cv–0207−SMY
MEMORANDUM AND ORDER
YANDLE, District Judge:
Plaintiff Pierre Jordan, an inmate in Lawrence Correctional Center (“Lawrence”), brings
this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. In his
Complaint (Doc. 1), Plaintiff makes multiple claims against the defendants related to his
treatment at Lawrence. He requests a prison transfer as well as monetary compensation from the
ten named defendants. Plaintiff was previously granted leave to file an amended complaint, but
failed to do so by the May 15, 2017 deadline. Therefore, this case is now before the Court for a
preliminary review of the original Complaint (Doc. 1) pursuant to 28 U.S.C. § 1915A, which
(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
(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 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, 102627 (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. See Rodriguez v. Plymouth Ambulance Serv., 577
F.3d 816, 821 (7th Cir. 2009).
As a part of screening, the Court is allowed to sever unrelated claims against different
defendants into separate lawsuits. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).
Severance is important, “not only to prevent the sort of morass” produced by multi-claim, multidefendant suits “but also to ensure that prisoners pay the required filing fees” under the Prison
Litigation Reform Act. Id. Therefore, consistent with George, unrelated claims will be severed
into new cases, given new case numbers, and assessed separate filing fees.
Plaintiff’s Complaint (Doc. 1) is incredibly disjointed throughout. That said, the Court is
able to decipher the following allegations: Plaintiff was assaulted by a fellow inmate, Herbert
Tribble, with a writing pen. (Doc. 1, p. 5). He was stabbed repeatedly in his arm and shoulder
by Tribble and sustained laceration injuries that have since become permanent. Id. Nurse
practitioners failed to administer first aid treatment to Plaintiff’s wounds from the attack. Id.
Weber recovered the weapon from Tribble and gave it to Harper as evidence of the attack. Id.
Agent Haues took pictures of Plaintiff’s injuries. Id. Plaintiff requested medical treatment from
Harper and Jennings at his adjustment committee hearing on May 26, 2016, but they refused to
assist him in getting medical treatment. Id. Plaintiff also sent an emergency medical grievance
and disciplinary report grievance to Duncan and Strubhart. Id.
Plaintiff began to receive threats of retaliatory violence from Tribble’s associates. When
he reported these incidents, Harper, Wheeler and Goins failed to investigate the threats or to
discipline the individuals threatening Plaintiff. Id.
While Plaintiff was in segregation, Reid and Soctkomp deprived him of dinner trays and
once per week showers, placed him in tight handcuff restraints leaving him in pain, intentionally
withheld mail from him and threatened him for submitting grievances. (Doc. 1, p. 13). Plaintiff
believes these actions were racially motivated. Id. He reported this behavior to Williams, Kidd
and Wheeler and they all failed to investigate and discipline Reid and Soctkomp. Id.
For the 16 days Plaintiff was on crisis suicide watch, Reid continued to psychologically
and sexually harass and terrorize him as well as the other inmates. Id. Plaintiff continued to
protest Reid’s behavior to the “M.H.P.’s” who promised to report his concerns to other prison
staff, but presumably failed to do so. Id.
Gaye and Halteroad behaved inappropriately toward Plaintiff as well by sexually
harassing him. Id. Gaye and Halteroad also encouraged Plaintiff to perform sexual acts on
himself and to engage in inappropriate sexual conversation for their gratification. (Doc. 1, p.
11). Administrative Review Board Office of Inmate Issues Chairwoman Sherry Benton and
Lawrence County State’s Attorney Quick failed to investigate Gaye’s inappropriate sexual
harassment of Plaintiff and other inmates. (Doc. 1, p. 19). Plaintiff sent an affidavit regarding
Gaye’s misconduct to Bownen, Quick and Jennings, and gave the same affidavit to Counselor
Collins and Ginder. (Doc. 1, p. 9).
Plaintiff was subjected to unconstitutional conditions of confinement by Weaver, Duvall
and Rutherford. (Doc. 1, pp. 14-16). These conditions included: excessive cold in Plaintiff’s
cell during the 2016 fall and winter seasons; toxic flood water from the utility room seeping into
Plaintiff’s cell; inadequate cleaning supplies provided to prisoners with which to clean their
cells; inadequate bathroom facilities and procedures to accommodate the prisoners during day
room time; inadequate and unsanitary food service and training of inmates who work in the
kitchen; and excessive heat in prisoners’ cells…from 95-100 degrees…that contributed to and
increased bacterial and viral diseases on the gallery. Id. Plaintiff injured his back and legs in a
fall caused by the floodwater in his cell. Id. He has also suffered from migraine headaches as a
result of these conditions, which have seriously affected his breathing, thinking and sleeping.
(Doc. 1, p. 15).
Plaintiff was intimidated verbally, sexually harassed and stolen from by Weber,
Soctkomp, Reid, Duvall, Brumer and Erwin. (Doc. 1, pp. 16, 18). These corrections officers
also allowed inmates to behave inappropriately in various ways. (Doc. 1, p. 18). Despite
Plaintiff filing multiple emergency staff conduct grievances against these officers for their
“unethical, unprofessional behavior,” Assistant Warden of Programs Dr. Brookhart, Assistant
Warden of Operations Goins, Warden Lamb and Lawrence County State’s Attorney Mr. Quick
attempted to cover up Weber’s theft of Plaintiff’s personal property, failed to investigate and
prosecute the C/Os and intentionally failed to protect Plaintiff and the other inmates from the
crimes the C/Os were committing. (Doc. 1, pp. 16, 18). As a result of the continued harassment
and intimidation by Weber and other inmates, Plaintiff attempted suicide on July 11, 2016.
(Doc. 1-1, p. 10). Plaintiff was also attacked by his cellmate, Charles Perkins, soon after both he
and Perkins alerted Smith that Perkins was a direct and immediate threat to Plaintiff’s safety.
(Doc. 1, p. 17). Plaintiff sustained injuries from this attack. (Doc. 1, p. 18). Prior to the attack,
Perkins and Plaintiff “would share stories of [their] sexual conduct/interactions with M.H.P. Ms.
Gay. [They] were both under the impression due to ‘psychological manipulation’ of M.H.P. Ms.
Gay that [they] were both in a relationship with her.” (Doc. 1, p. 17).
Plaintiff was obstructed from having meaningful access to the courts when Dr. Brookhart
instructed Law Librarian Caslin to deny his request “to be placed on the legal deadline because
they don’t recognize civil and criminal litigation, only prison conditions.” (Doc. 1, p. 19). As a
result, Plaintiff missed a filing deadline in his tort case, a fact the opposing counsel cited as
grounds for dismissal of the case. Id.
Plaintiff was stopped by Benton from petitioning the government for a redress of
grievances and Lamb denied Plaintiff’s emergency staff conduct grievances and requests for a
P.R.E.A. investigation. Id. He was also denied adequate health care by the doctors, health care
administrator and nurse practitioners at Lawrence when they failed to appropriately treat his
athletes’ foot, bruised ankle, Achilles tendon and nose laceration. (Doc. 1, p. 20).
The Court begins its § 1915A review with a note about the parties in this case.
Throughout his Complaint, Plaintiff refers to the conduct of some individuals not named in the
caption or defendant list. For example, he states that nurse practitioners, doctors, health care unit
administrators, Jennings, Duncan, Strubhart and Haues were deliberately indifferent to certain of
his medical needs; that Williams, Kidd and Harteroad failed to protect him against certain abuses
by the prison staff; that Reid, Soctkomp, Weaver, Duvall and Rutherford subjected him to
unconstitutional conditions of confinement and cruel and unusual punishment; and that Smith
failed to protect him from an attack by his cellmate. Because these individuals are not listed in
Plaintiff's caption by name or by Doe designation, they will not be treated as defendants in this
case and any claims against them should be considered dismissed without prejudice. See Myles
v. United States, 416 F.3d 551, 551–52 (7th Cir. 2005) (defendants must be “specif[ied] in the
Turning to the allegations in Plaintiff's Complaint, the Court finds it convenient to divide
the pro se action into the following enumerated 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 regarding their merit.
Count 1 –
Harper was deliberately indifferent to Plaintiff’s medical needs when he
refused Plaintiff’s request that he help him get medical care on May 26,
2016 for the injuries Plaintiff sustained when inmate Tribble attacked him.
Count 2 –
Harper, Wheeler, and Goins failed to investigate and discipline the
inmates involved when Plaintiff informed them of threats of violence
against him by inmates associated with inmate Tribble.
Count 3 –
Wheeler failed to intervene to prevent Reid and Soctkomp from depriving
Plaintiff of dinner trays and once per week showers, placing Plaintiff in
tight handcuff restraints, intentionally withholding mail from Plaintiff, and
threatening Plaintiff for submitting grievances after Plaintiff reported this
behavior to Wheeler via an inmate request.
Count 4 –
Weber subjected Plaintiff to cruel and unusual punishment by verbally and
sexually harassing Plaintiff, making intimidating remarks to Plaintiff,
stealing from Plaintiff, and making retaliatory threats toward Plaintiff,
resulting in Plaintiff attempting suicide on July 11, 2016.
Count 5 –
Brookhart, Goins, Lamb, Quick, and Wheeler showed deliberate
indifference toward Plaintiff and conspired to cover up unconstitutional
acts of certain corrections officers, by intentionally failing to investigate
and prevent Weber, Reid, Duvall, Soctkomp, Brumer, and Erwin from
verbally and sexually harassing Plaintiff, making intimidating remarks to
Plaintiff, stealing from Plaintiff, and making threats toward Plaintiff.
Count 6 –
Brookhart violated Plaintiff’s First Amendment rights by denying him
access to courts when he instructed the law librarian to deny Plaintiff’s
requests with respect to his tort claim, causing him to miss his filing
Count 7 –
Gaye subjected Plaintiff to cruel and unusual punishment by sexually
harassing Plaintiff in counseling sessions.
Count 8 –
Benton, Bownen, and Quick failed to protect Plaintiff when they ignored
and failed to investigate Plaintiff’s allegations of sexual misconduct
As discussed in more detail below, Count 1 will be allowed to proceed in this action,
Counts 4, 6, 7 and 8 will be severed from this action and the remaining claims will be dismissed
for failure to state a claim upon which relief may be granted. Any other intended claim that has
not been recognized by the Court is considered dismissed without prejudice as inadequately pled
under the Twombly pleading standard.
Count 1 – Deliberate Indifference to Medical Needs
A prisoner raising a claim against a prison official for deliberate indifference to the
prisoner’s serious medical needs must satisfy two requirements. The first requirement is an
objective standard: “[T]he deprivation alleged must be, objectively, ‘sufficiently serious[.]’”
Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quoting Wilson v. Seiter, 501 U.S. 294, 298
(1991)). The Seventh Circuit has found the following to be indications of a serious medical
need: (1) where failure to treat the condition could “result in further significant injury or the
unnecessary and wanton infliction of pain;” (2) “[e]xistence of an injury that a reasonable doctor
or patient would find important and worthy of comment or treatment;” (3) “presence of a
medical condition that significantly affects an individual’s daily activities;” or (4) “the existence
of chronic and substantial pain.” Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997).
The second requirement is a subjective standard: “[A] prison official must have a
‘sufficiently culpable state of mind,’” one that amounts to “‘deliberate indifference’ to inmate
health or safety.”
Id. (quoting Wilson, 501 U.S. at 297).
Liability under the deliberate-
indifference standard requires more than negligence, gross negligence or even recklessness. It is
satisfied only by conduct that approaches intentional wrongdoing, i.e., “something less than acts
or omissions for the very purpose of causing harm or with knowledge that harm will result.”
Farmer, 511 U.S. at 835. Non-medical prison officials may satisfy the subjective component if
they deliberately ignore a constitutional deprivation that is brought to their attention. See Perez
v. Fenoglio, 792 F.3d 768, 781-82 (7th Cir. 2015). Generally, “prisoner requests for relief that
fall on ‘deaf ears’ may evidence deliberate indifference.” Perez, 792 F.3d at 782.
Plaintiff has satisfied the objective prong based on his allegation that he sustained
permanent laceration injuries from being stabbed repeatedly. With respect to the subjective
prong, Plaintiff alleges that he requested help to obtain medical care directly from Harper when
nurse practitioners failed to treat his wounds and that Harper refused to assist him. These
allegations are sufficient to state a viable claim. Therefore, Count 1 will be allowed to proceed
Count 2 – Failure to Protect from other Inmates
“[P]rison officials have a duty . . . to protect prisoners from violence at the hands of other
prisoners.” Farmer v. Brennan, 511 U.S. 825, 833 (1994) (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 failure to
protect claim, 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, the defendants had to know that there was a substantial risk that Plaintiff
was going to be attacked and must have failed to take any action. See Sanville v. McCaughtry,
266 F.3d 724, 733-34 (7th Cir. 2001). 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)).
Here, Plaintiff alleges that Harper, Wheeler and Goins failed to investigate and discipline
inmates associated with inmate Tribble, who threatened violence against Plaintiff. He does not
however, allege that these inmates acted upon these threats to harm him. Nor does Plaintiff
allege that he informed the defendants of any specific threats to his safety or that he was actually
at risk of harm from these other inmates. For these reasons, Plaintiff’s failure to protect claims
against in Count 2 against Harper, Wheeler and Goins will be dismissed for failure to state a
claim upon which relief may be granted.
Count 3 – Failure to Intervene
Plaintiff asserts that Wheeler also failed to intervene to prevent Reid and Soctkomp from
depriving him of dinner trays and once per week showers, from placing him in tight handcuff
restraints, from intentionally withholding mail from him and from threatening him for submitting
grievances. Plaintiff alleges that he reported this conduct to Wheeler via an offender request, but
that Wheeler failed to investigate the situation and/or discipline Reid and Soctkomp. Because
Wheeler was not a direct participant in the alleged cruel and unusual punishment and First
Amendment access to mail and retaliation violations, his liability would be based solely upon his
knowledge of the deprivations and failure to act to remedy them. See Perez, 792 F.3d at 781-82
(citing Vance v. Peters, 97 F.3d 987, 993 (7th Cir. 1996) (“[A] prison official's knowledge of
prison conditions learned from an inmate's communications can, under some circumstances,
constitute sufficient knowledge of the conditions to require the officer to exercise his or her
authority and to take the needed action to investigate and, if necessary, to rectify the offending
Under this standard, Plaintiff has not provided sufficient information to implicate
Wheeler. It is unclear from Plaintiff’s allegations whether Wheeler actually received his inmate
request. It is also unclear whether Plaintiff provided Wheeler with sufficient detail in his inmate
request to put him on notice that constitutional deprivations may have been occurring.
Moreover, the Court “need not try to fish a gold coin from a bucket of mud” in order to decipher
whether any of Plaintiff’s 159 pages of exhibits sheds light on the content of his request to
Wheeler. See United States ex rel. Garst v. Lockheed–Martin Corp., 328 F.3d 374, 378 (7th Cir.
2003). The Court is also unable to assess from Plaintiff’s allegations whether a constitutional
deprivation potentially occurred given the fact that Plaintiff did not include Reid or Soctkomp as
defendants to this action and otherwise provided minimal information about the alleged
deprivations. Thus, Count 3 will be dismissed without prejudice for failure to state a claim upon
which relief may be granted.
Count 4 – Cruel and Unusual Punishment by Weber
Plaintiff alleges that sustained verbal and other abuses by Weber, including the theft of
some of his personal property, caused him to attempt suicide. Typically, allegations of verbal
harassment state no claim under the Eighth Amendment. Dobbey v. Ill. Dep't of Corrections,
574 F.3d 443, 446 (7th Cir. 2009). See also DeWalt v. Carter, 224 F.3d 607, 612 (7th Cir. 2000)
(“Standing alone, simple verbal harassment does not constitute cruel and unusual punishment,
deprive a prisoner of a protected liberty interest or deny a prisoner equal protection of the laws”).
In certain circumstances, however, verbal harassment may rise to the level of cruel and unusual
punishment. See Beal v. Foster, 803 F.3d 356, 358 (7th Cir. 2015).
Weber’s alleged harassment of Plaintiff involved both verbal harassment and abusive
action in the form of the theft of Plaintiff’s personal property. Further, similar to the plaintiff in
Beal, Plaintiff “claims to have experienced severe psychological harm as a result of the incidents
described in his complaint—psychological harm that induced him to” attempt suicide, similar to
the Beal plaintiff who sought “psych service.” Id. While it appears to be a close case as to
whether Plaintiff’s allegations against Weber should be allowed to proceed past threshold, this
Court need not make that determination as Plaintiff’s claim against Weber is entirely unrelated to
his medical needs claim against Harper. As such, Plaintiff’s cruel and unusual punishment claim
against Weber will be severed into a new case. See George, 507 F.3d at 607.
Count 5 – Conspiracy and Deliberate Indifference of
Brookhart, Goins, Lamb, Quick and Wheeler
Plaintiff alleges that Brookhart, Goins, Lamb, Quick and Wheeler attempted to cover up
Weber’s theft of Plaintiff’s personal property, failed to investigate and prosecute corrections
officers that were harassing him and intentionally failed to protect Plaintiff and the other inmates
from the crimes the corrections officers were committing after Plaintiff submitted emergency
grievances against the officers for their “unethical, unprofessional behavior.” To the extent
Plaintiff seeks to bring a conspiracy claim against these defendants, his conclusion that
Defendants’ actions amounted to an unlawful conspiracy is unsupported by factual allegations.
Claims of conspiracy necessarily require a certain amount of factual underpinning to survive
preliminary review. See Woodruff v. Mason, 542 F.3d 545, 551 (7th Cir. 2008) (quoting Massey
v. Johnson, 457 F.3d 711, 716 (7th Cir. 2006)). “To establish the existence of a conspiracy, a
plaintiff must demonstrate that the conspirators have an agreement to inflict injury or harm upon
him.” Sow v. Fortville Police Dept., 636 F.3d 293, 304-05 (7th Cir. 2011). “The agreement may
be inferred from circumstantial evidence, but only if there is sufficient evidence that would
permit a reasonable jury to conclude that a meeting of the minds had occurred and that the
parties had an understanding to achieve the conspiracy’s objectives.”
Id. at 305 (quoting
Hernandez v. Joliet Police Dept., 197 F.3d 256, 263 (7th Cir.1999)).
The mere allegations that Plaintiff submitted emergency grievances against corrections
officers for their inappropriate behavior and that the relevant defendants failed to act to protect
Plaintiff from these alleged abuses does not establish a conspiracy. The Complaint contains no
factual support for the idea that the defendants had a meeting of the minds to harm Plaintiff.
Instead, Plaintiff’s claim that the defendants engaged in a conspiracy to cover up the violation of
his rights rests solely on his own conclusions. Conclusory legal statements are insufficient to
state a claim that survives review under § 1915A. See Brooks v. Ross, 578 F.3d 574, 581 (7th
Cir. 2009). Accordingly, Plaintiff’s conspiracy claims asserted in Count 5 against Brookhart,
Goins, Lamb, Quick and Wheeler will be dismissed for failure to state a claim upon which relief
may be granted.
Similarly, Plaintiff’s deliberate indifference claim against these defendants cannot
proceed. Plaintiff claims that he submitted emergency grievances and that the defendants failed
to act on them. However, he does not allege who, if any, of the defendants actually received and
reviewed the grievances. He also does not allege that the grievances submitted would have
enabled the defendants to intervene and prevent further abuses by the corrections officers, or that
the grievances alerted the defendants that may have received them of an ongoing constitutional
violation. In other words, Plaintiff has failed to plead enough facts to elevate from possibility to
probability his claim that these defendants should have and were capable of intervening to stop
the alleged abuses. Count 5 will therefore be dismissed in its entirety, without prejudice.
Count 6 – Access to Courts
Plaintiff asserts that Brookhart violated his First Amendment rights by denying him
access to courts when he instructed the law librarian to deny Plaintiff’s requests with respect to
his tort claim, causing him to miss his filing deadline. Prisoners have a fundamental right of
meaningful access to the courts. Bounds v. Smith, 430 U.S. 817 (1977).
Prison officials have an affirmative duty to provide inmates with reasonable
access to courts, which includes providing access to adequate libraries (or
counsel). DeMallory v. Cullen, 855 F.2d 442, 446 (7th Cir. 1988). The right of
access “requires prison authorities to assist inmates in the preparation and filing of
meaningful legal papers by providing prisoners with adequate law libraries or
adequate assistance from persons trained in the law.” Bounds v. Smith, 430 U.S.
817, 828 (1977). Nonetheless, reasonable access does not mean unlimited access.
Hossman v. Sprandlin, 812 F.2d 1019, 1021 (7th Cir. 1987).
Martin v. Davies, 917 F.2d 336, 338 (7th Cir. 1990). Violations of the right of access to the
courts may be vindicated in federal court in a civil rights action pursuant to 42 U.S.C. § 1983.
An allegation of actual or threatened detriment is an essential element of a § 1983 action
for denial of access to the courts, Martin 917 F.2d at 340; Howland v. Kilquist, 833 F.2d 639,
642-43 (7th Cir. 1987); Hossman, 812 F.2d at 1021-22. Such an allegation must be more than
The requirement that prisoners making access-to-courts claims allege specific
prejudice should not be understood as an onerous fact-pleading burden; it is
simply a requirement that a prisoner's complaint spell out, in minimal detail, the
connection between the alleged denial of access to legal materials and an inability
to pursue a legitimate challenge to a conviction, sentence, or prison conditions.
Marshall v. Knight, 445 F.3d 965, 968 (7th Cir. 2006). In this case, Plaintiff claims that
Brookhart’s instructions to the law library staff to deny Plaintiff’s request with respect to a tort
claim he was litigating resulted in his missing certain filing deadlines for that case. Plaintiff’s
missing the deadline was cited as grounds for dismissal of Plaintiff’s case.
Although Plaintiff may have stated a colorable access to courts claim, at least at this
stage, this Court will exercise its discretion to sever this claim from the instant case as it involves
an unrelated claim against a different defendant than the claims that will be allowed to proceed
herein. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Therefore, Count 6 will be
severed into a new case.
Count 7 – Sexual Harassment
An Eighth Amendment claim for sexual harassment has been recognized. See, e.g.,
Pruitt v. Mote, 503 F.3d 647 (7th Cir. 2007). However, Plaintiff’s “complaint alleges only
sexual harassment consisting of words and gestures rather than any physical abuse. And while
an allegation of sexual abuse of a prisoner would state a claim under the Eighth Amendment for
cruel and unusual punishment, verbal harassment does not” absent extreme circumstances. Allen
v. Wine, 297 F. App’x 524, 530 (7th Cir. 2008) (citing DeWalt v. Carter, 224 F.3d 607, 612 (7th
Nevertheless, Plaintiff’s potential sexual harassment claim against Gaye is
unrelated to the other claims in this action – in both subject matter and with respect to the
defendants involved. Accordingly, the Court will exercise its discretion and sever this claim
against Gaye into a separate case. See George, 507 F.3d at 607.
Count 8 – Failure to Protect from Sexual Misconduct
Plaintiff alleges that Benton, Bownen and Quick failed to protect him when they ignored
and failed to investigate Plaintiff’s allegations of sexual misconduct against Gaye. Because this
claim is also separate and distinct from the claims asserted in Count 1 that will be proceeding in
this action, and is factually related to Plaintiff’s allegations underpinning Count 7, Count 8 will
be severed into the same action as Count 7. See George, 507 F.3d at 607.
Plaintiff has filed a Motion for Recruitment of Counsel (Doc. 3), which is hereby
DENIED without prejudice. There is no constitutional or statutory right to counsel in federal
civil cases. Romanelli v. Suliene, 615 F.3d 847, 851 (7th Cir. 2010); see also Johnson v.
Doughty, 433 F.3d 1001, 1006 (7th Cir. 2006). Nevertheless, the district court has discretion
under 28 U.S.C. § 1915(e)(1) to recruit counsel for an indigent litigant. Ray v. Wexford Health
Sources, Inc., 706 F.3d 864, 866–67 (7th Cir. 2013). When a pro se litigant submits a request for
assistance of counsel, the Court must first consider whether the indigent plaintiff has made
reasonable attempts to secure counsel on his own. Navejar v. Iyiola, 718 F.3d 692, 696 (7th Cir.
2013) (citing Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007). If so, the Court must examine
“whether the difficulty of the case—factually and legally—exceeds the particular plaintiff’s
capacity as a layperson to coherently present it.” Navejar, 718 F.3d at 696 (quoting Pruitt, 503
F.3d at 655). “The question ... is whether the plaintiff appears competent to litigate his own
claims, given their degree of difficulty, and this includes the tasks that normally attend litigation:
evidence gathering, preparing and responding to motions and other court filings, and trial.”
Pruitt, 503 F.3d at 655. The Court also considers such factors as the plaintiff’s “literacy,
communication skills, education level, and litigation experience.” Id.
With regard to the first step of the inquiry, there is no indication that Plaintiff has
attempted to obtain counsel on his own, or has been effectively precluded from doing so.
Because Plaintiff has not made this showing, the Court finds that Plaintiff has not made a
reasonable attempt to find counsel. Though this Court is denying Plaintiff’s Motion at this time,
it will remain open to the appointment of counsel in this case if the need arises in the future.
IT IS HEREBY ORDERED that COUNT 4, which is unrelated to the surviving claim
in this action, is SEVERED into a new case against WEBER.
IT IS FURTHER ORDERED that COUNT 6, which is unrelated to the surviving claim
in this action, is SEVERED into a new case against BROOKHART.
IT IS FURTHER ORDERED that COUNTS 7 and 8, which are unrelated to the
surviving claim in this action, are SEVERED into a new case against GAYE (Count 7),
BENTON (Count 8), BOWNEN (Count 8), and QUICK (Count 8).
The claims in the newly severed cases shall be subject to screening pursuant to 28 U.S.C.
§ 1915A after the new case number and judge assignment is made. In the new cases, the Clerk is
DIRECTED to file the following documents:
This Memorandum and Order;
The Complaint (Doc. 1); and
Plaintiff’s Motion for Leave to Proceed In Forma Pauperis (Doc. 2).
Plaintiff will be responsible for an additional $350 filing fee in each newly severed
case. 1 No service shall be ordered in the severed cases until the § 1915A review is completed.
IT IS FURTHER ORDERED that COUNTS 2, 3, and 5 shall be DISMISSED without
prejudice as against all defendants for failure to state a claim upon which relief can be granted.
IT IS FURTHER ORDERED that the only claim remaining in this action is COUNT
Pursuant to 28 U.S.C. § 1914, effective May 1, 2013, an additional $50.00 administrative fee is also to
be assessed in all civil actions, unless pauper status is granted.
1, which shall PROCEED against HARPER.
IT IS FURTHER ORDERED that Defendants BROOKHART, GAYE, LAMB,
WHEELER, GOINS, BENTON, and QUICK are TERMINATED from this action without
prejudice and WEBER and BOWNEN are dismissed from this action with prejudice.
IT IS FURTHER ORDERED that as to COUNT 1, the Clerk of Court shall prepare for
HARPER: (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 the defendant’s place of employment
as identified by Plaintiff. If the 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 pay the full costs of formal service, to the extent authorized by the Federal Rules of
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 the defendant (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 the defendant 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.
Harper 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), the remaining count in this action, Count 1 against
Harper, is REFERRED to United States Magistrate Judge Reona J. Daly for further pre-trial
proceedings. Further, this matter shall be REFERRED to United States Magistrate Judge Reona
J. Daly 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 Section 1915, Plaintiff will be required to pay the full amount of the costs, despite the fact
that his application to proceed in forma pauperis has been granted. See 28 U.S.C.
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.
____s/STACI M. YANDLE____
U.S. District Judge
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