Croom v Unknown Party

Filing 13

MEMORANDUM AND ORDER REFERRING CASE to Magistrate Judge Reona J. Daly. Signed by Judge David R. Herndon on 6/30/2017. (jaj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CHRISTOPHER CROOM,
Plaintiff,
vs.

Case No. 17 cv–633 DRH

JACQUELINE LASHBROOK, and
RODELY
Defendant.
MEMORANDUM AND ORDER
HERNDON, District Judge:
Plaintiff Christopher Croom brings this action for deprivations of his
constitutional rights pursuant to 42 U.S.C. § 1983 that allegedly occurred at
Menard Correctional Center. Plaintiff seeks declarative relief, monetary damages,
and injunctive relief. This case is now before the Court for a preliminary review of
the Amended Complaint 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 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.

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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 of the pro se complaint are to be liberally construed.

See

Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).
The Amended Complaint
Previously, plaintiff brought this claim in case No. 17-612 on June 9, 2017.
(Doc. 1). This claim was deemed severable pursuant to George v. Smith, 507
F.3d 605 (7th Cir. 2007) and this action was opened on June 14, 2017. (Doc. 1).
The Court dismissed the complaint without prejudice on June 19, 2017 for
failure to state a claim because plaintiff had not associated any defendants with
his claim.

(Doc. 5).

Plaintiff filed an amended complaint on June 29, 2017.

(Doc. 10).
Pursuant to the amended complaint, plaintiff alleges that he sent a
grievance to Counselor Rodely on March 14, 2017 regarding an enemy of his that
is also housed at Menard. (Doc. 10, p. 5). Plaintiff alleges that Marlon Brown
was an enemy of his on the streets. Id. One day at legal call, plaintiff saw an
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inmate housed in West Cell house with Brown. Id. That inmate told plaintiff that
Brown knew plaintiff was at Menard and would “catch [him] in traffic.”

Id.

Plaintiff interprets this as a statement that Brown will get him when he sees him.

Id.

Plaintiff sent a grievance to Rodely and marked it as an emergency.

Id.

Plaintiff’s understanding is that emergency grievances are sent directly to the
Warden, so he assumes Warden Lashbrook saw the grievance. (Doc. 10, p. 6).
Plaintiff never received a response to his grievance from either Rodely or
Lashbrook. Id.
Plaintiff has also requested injunctive relief on this claim.

(Doc. 11).

Specifically, he requests “transfer of Plaintiff from this institution to be away from
a constant threat of danger from a murderer.” (Doc. 10, p. 8).
Discussion
The Court finds it convenient to construe plaintiff’s claim as one count.
The parties and the Court will use this designation in all future Orders:
Count 1 – Rodely and Lashbrook were deliberately indifferent to the
serious risk of harm posed by plaintiff’s enemy, Marlon Brown, when they
failed to respond to his emergency grievance regarding Brown.
In order to succeed on a claim for failure to protect, a plaintiff 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.

Farmer v. Brennan, 511 U.S. 825, 834 (1994); Wright v. Miller, 561 F. App’x 551,
555 (7th Cir. 2014); Pinkston v. Madry, 440 F.3d 879, 889 (7th Cir. 2006). A
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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). However, conduct that amounts to negligence or inadvertence is not
enough to state a claim. Pinkston, 440 F.3d at 889 (discussing Watts v. Laurent,
774 F.2d 168, 172 (7th Cir. 1985)).
Here, plaintiff has alleged that he communicated the threat posed by Brown
to his counselor Rodely and to Warden Lashbrook through the grievance process.
He further alleges that no one has responded to his grievance or addressed the
threat. As a result, plaintiff is afraid that Brown will attack him when they see
each other because nothing has been done to prevent it.

On these facts, it is

plausible that defendants are deliberately indifferent to the threat posed by
Brown, and so Count 1 will proceed against them.
The Court notes that it is permitting the claim against Lashbrook to
proceed under a theory of personal involvement. As the Seventh Circuit has made
clear, when an official is alerted to an excessive risk to inmate health or safety
through a prisoner’s grievances, refusal to exercise the authority of his or her
office may demonstrate deliberate indifference. Perez v. Fenoglio, 792 F.3d 768,
781-82 (7th Cir. 2015). However, plaintiff’s amended complaint also states that
Lashbrook is “legally responsible for the operation of Menard Correctional Center
and for the welfare of all inmates of that prison,” (Doc. 10, p. 1), and “gross[ly]
negligent in managing subordinates.” (Doc. 10, p. 6).
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This is a theory of

respondeat superior liability, i.e. plaintiff is alleging that since Lashbrook
supervises the activities of Menard, she is responsible for all that goes on there.
Plaintiff cannot bring claims based on a theory of respondeat superior in a lawsuit
premised on § 1983. 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); Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th
Cir. 1983); Duncan v. Duckworth, 644 F.2d 653, 655-56 (7th Cir. 1981). To the
extent that plaintiff is raising respondeat superior claims, those claims are
dismissed with prejudice and this case will proceed against Lashbrook based on
her alleged personal involvement only.
The Court also notes, that as to plaintiff’s request for injunctive relief,
under the doctrine of Ex parte Young, a plaintiff may file “suit[ ] against state

officials seeking prospective equitable relief for ongoing violations of federal law . .
. .” Marie O. v. Edgar, 131 F.3d 610, 615 (7th Cir. 1997) (emphasis added); see

Ex parte Young, 209 U.S. 123, 159-60 (1908); Ind. Prot. and Advocacy Servs. v.
Ind. Family and Soc. Servs. Admin., 603 F.3d 365, 371 (7th Cir. 2010). Plaintiff
has requested transfer to another institution and has also claimed that this is the
only relief that will protect him. Currently, neither of the named defendants has
the authority to unilaterally transfer plaintiff to another institution, although
Lashbrook would certainly be involved in that process. In order to ensure the
availability of injunctive relief the Court will add John Baldwin, in his official
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capacity as the Acting Director of the Illinois Department of Corrections, as a
defendant in this case for the purposes of injunctive relief only. At this time, the
amended complaint does not contain any claims against Baldwin in his individual
capacity.
Pending Motions
Plaintiff filed a motion for a preliminary injunction on June 29, 2017. That
Motion is referred to a United States Magistrate Judge for immediate disposition.
(Doc. 11).
Disposition
IT IS ORDERED that Count 1 survives threshold review against Rodely
and Lashbrook. The Clerk of Court is DIRECTED to add John Baldwin to docket
in his official capacity only as the Director of the IDOC for the purposes of
injunctive relief.
IT IS FURTHER ORDERED that the Clerk of Court shall prepare for
defendants Rodely, Lashbrook, and Baldwin:

(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

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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.
IT IS FURTHER ORDERED that, 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.
IT IS FURTHER ORDERED that plaintiff shall serve upon defendants (or
upon defense counsel once an appearance is entered), a copy of every pleading or
other document submitted for consideration by the Court. Plaintiff shall include
with the original paper to be filed a certificate stating the date on which a true and
correct copy of the document was served on defendants or counsel. Any paper
received by a district judge or magistrate judge that has not been filed with the
Clerk or that fails to include a certificate of service will be disregarded by the
Court.
Defendants are ORDERED to timely file an appropriate responsive pleading
to the complaint and shall not waive filing a reply pursuant to 42 U.S.C. §
1997e(g).
Pursuant to Local Rule 72.1(a)(2), this action is REFERRED to a United
States Magistrate Judge for further pre-trial proceedings.
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Further, this entire matter is 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.
IT IS FURTHER ORDERED that 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, notwithstanding that his
application to proceed in forma pauperis has been 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
3.1(c)(1)

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

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transmission of court documents and may result in dismissal of this action for
want of prosecution. See FED. R. CIV. P. 41(b).

Digitally signed by
Judge David R.
Herndon
Date: 2017.06.30
14:57:06 -05'00'

IT IS SO ORDERED.
DATED: June 30, 2017

United States District Judge

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