Hubbard v. Butler

Filing 10

ORDER REFERRING CASE to Magistrate Judge Reona J. Daly. Signed by Judge Staci M. Yandle on 3/15/2018. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

MICHAEL HUBBARD,
Plaintiff,
vs.
KIMBERLY BUTLER,
UNKNOWN CORRECTIONAL
OFFICER,
UNKNOWN SERGEANT, and
UNKNOWN LIEUTENANT

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Case No. 17−cv–0672−SMY

Defendants.

MEMORANDUM AND ORDER
YANDLE, District Judge:
Plaintiff Michael Hubbard, an inmate at Menard Correctional Center (“Menard”), brings
this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. Plaintiff
requests “all parties involved held accountable” and monetary damages. This case is now before
the Court for a preliminary review of the Second 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, 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).
Plaintiff originally filed suit on June 28, 2017. (Doc. 1). On August 22, 2017, the Court
subjected the original Complaint to § 1915A review and dismissed it without prejudice, finding
Plaintiff had failed to state a claim in numerous respects. (Doc. 5). Specifically, the Court noted
that although Plaintiff had alleged that his cellmate sexually assaulted him, he did not set forth
facts suggesting that any official knew about a specific threat to Plaintiff failed to take action to
protect him. (Doc. 5, p. 3). Plaintiff also raised his subsequent medical treatment, but failed to
allege that he was harmed by any of the delays he experienced. (Doc. 5, pp. 3-4). Likewise,
Plaintiff alleged that he was denied protective custody, but failed to explain what harm he
suffered as a result of that denial. (Doc. 5, p. 4).
Plaintiff filed his First Amended Complaint on September 11, 2017. (Doc. 6). The First
Amended Complaint was dismissed without prejudice on November 29, 2017 because Plaintiff
once again failed to name anyone personally involved as a defendant. (Doc. 8). Plaintiff was
granted leave to amend no later than December 27, 2017. (Doc. 8). Plaintiff filed a Second
Amended Complaint on December 13, 2017. (Doc. 9).

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The Second Amended Complaint
Plaintiff alleges that in June 2015, he was on the receiving gallery at Menard when
another inmate was moved into his cell. (Doc. 9, p. 5). The new cellmate was in his mid-thirties
and had been locked up since he was a teenager. Id. He began asking Plaintiff sexual questions
and within a few days, had begun to make Plaintiff very uncomfortable. Id. Plaintiff told
Unknown Correctional Officer that he was having trouble with his cellie and needed to be
moved. Id. The Unknown Correctional Officer shot Plaintiff an annoyed look and did nothing.
Id. Plaintiff generally alleges that “they” were not matching cellmates properly. Id.
Plaintiff put in a transfer request to West House Sergeant, noting that his cellmate was
coming on to him. (Doc. 9, pp. 5-6). After 2 days, he submitted another request to the West
House Lieutenant, indicating that his cellmate was becoming more aggressive. Id. Plaintiff’s
cellmate began to sexually abuse him after about 4 or 5 days by threatening serious physical
harm. (Doc. 9, p. 5). Plaintiff was moved to East house on June 10, 2015. Id.
Plaintiff alleges that the medical treatment and Internal Affairs investigation he received
after the alleged assault were inadequate. (Doc. 9, pp. 5-6). When Plaintiff saw the doctor for
his injuries, he also mentioned some skin spots he thought might be cancerous, but the doctor did
not test them. (Doc. 9, p. 5).
Discussion
Based on the allegations of the Second Amended Complaint, the Court finds it
convenient to divide the pro se action into a single count. 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 following claim shall proceed in this action:
Count 1 – Unknown Correctional Officer, Unknown Sergeant, and Unknown
Lieutenant were deliberately indifferent to the risk of serious harm posed by
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Plaintiff’s cellmate when they disregarded his request to be moved, causing him
to suffer a sexual assault, in violation of the Eighth Amendment.

In Farmer v. Brennan, 511 U.S. 825 (1994), the Supreme Court held that “prison officials
have a duty . . . to protect prisoners from violence at the hands of other prisoners.” Id. at 833
(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 claim for failure to protect, 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.
Pope v. Shafer, 86 F.3d 90, 92 (7th Cir. 1996). In other words, Defendants had to know that
there was a substantial risk that the person who attacked Plaintiff would do so, yet fail 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)).
Plaintiff alleges that he made 3 complaints of escalating urgency up the chain of
command in order to secure a cell change. He also alleges that he was ignored at all levels, and
was then sexually abused. This is sufficient to state a claim against the 3 unknown defendants.
The Court will add Jacqueline Lashbrook, the current Warden of Menard, to the case for the sole
purpose of identifying the unknown defendants.

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Defendant Butler, however, must be dismissed as Plaintiff has failed to state a claim
against her in her individual capacity. As explained more fully in the Court’s prior Orders,
Plaintiff has not alleged that Butler was personally involved in the relevant conduct and he
appears to have named her only because she was in charge. But being in charge, standing alone,
is not grounds for § 1983 liability. 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). Plaintiff can only bring claims against individuals who were actually
involved in the conduct. Plaintiff cannot bring a claim against Butler merely because she
supervised the guards. Because he has not alleged that Butler knew his cellmate posed a risk to
him, he has not adequately stated a claim against her.
This is Plaintiff’s third attempt to state a claim against Butler and he has failed to do so
each time. As such, the court presumes that he cannot do so and will dismiss Plaintiff’s claim
against Butler with prejudice.
Plaintiff has made other factual allegations, but the Court concludes that they do not state
claims because Plaintiff has failed to associate any defendants with those allegations claims or
alleged any harm. For example, Plaintiff claims that Internal Affairs did not take his allegations
seriously, blamed him for the attack, and had him sign certain documents under suspicious
circumstances. But Plaintiff has not alleged that any of the unknown defendants participated in
that conduct. Likewise, he alleges that the medical team did not properly respond to his attack,
but fails to mention any member of the medical staff in his case caption. Without a named
defendant and specific allegations against that defendant, the claims fail.

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Plaintiff has also continually refers to his potential skin cancer in this action, but as that
claim raises a clearly separate factual issue from the sexual assault, it is not properly joined
pursuant to Fed. R. Civ. P. 20. Finally, as to all of the above allegations, Plaintiff has not alleged
that he suffered actual harm, a requirement in a tort action.

Bridges v. Gilbert, 557 F.3d 541,

555 (7th Cir. 2009). For the above reasons, the Court finds that Plaintiff has not sufficiently
stated any claims regarding his post-assault investigation or medical care. Accordingly, any
claims based on these facts will be dismissed without prejudice.
Disposition
Count 1 survives as to Unknown Correctional Officer, Unknown Sergeant, and
Unknown Lieutenant. Kimberly Butler is DISMISSED with prejudice for failure to state a
claim. The Clerk of Court is DIRECTED to add Jacqueline Lashbrook to the docket as a
Defendant for the purpose of identifying the unknown defendants only. Lashbrook shall be
dismissed after identification.
The Clerk of Court shall prepare for Defendant Lashbrook: (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 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.
Service shall not be made on the Unknown (John Doe) Defendants until such time as
Plaintiff has identified them by name in a properly filed amended complaint.

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Plaintiff is

ADVISED that it is Plaintiff’s responsibility to provide the Court with the names and service
addresses for these individuals.
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. 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
Reona J. 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.
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).
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).

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IT IS SO ORDERED.

DATED: March 15, 2018

s/ STACI M. YANDLE
U.S. District Judge

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