Carcione v. Jones et al

Filing 11

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Signed by Judge J. Phil Gilbert on 9/7/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KYLE J. CARCIONE,
Plaintiff,
vs.
DONALD R. JONES,
and CHET SHAFFER,
Defendants.

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Case No. 17-cv-700-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff, currently incarcerated at the Jackson County Jail, has brought this pro se civil
rights action pursuant to 42 U.S.C. § 1983. His claims arose while he was detained at the
Franklin County Jail. Plaintiff claims that Defendants violated his rights in numerous ways,
including denying him access to a grievance procedure, placing him in segregation without due
process, and failing to transport him to court appearances. This case is now before the Court for
a preliminary review of the complaint 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
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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. 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 one of Plaintiff’s claims survives threshold
review under § 1915A.
The Complaint
Plaintiff states that he has been in custody since October 14, 2015, during which time he
spent at least 10 months in the Franklin County Jail. (Doc. 1, p. 5). The Complaint indicates that
Plaintiff is being held as a pretrial detainee on charges pending in Jackson County. He names
Franklin County Jail Administrator Chet Shaffer and Sheriff Donald Jones as Defendants.
According to Plaintiff, Shaffer has impeded and denied his access to the jail’s grievance
process on many occasions. Shaffer is the person who answers grievances, and he has refused to

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give Plaintiff copies or allow him to appeal his grievances outside the facility. (Doc. 1, p. 5).
Shaffer has interfered in all of Plaintiff’s medical treatment by confiscating Plaintiff’s
medical requests and “making his own diagnosis,” which has prolonged the process of obtaining
treatment or an examination by a doctor. Id.
Shaffer has placed Plaintiff in segregation multiple times, without giving Plaintiff a
disciplinary report or holding a hearing.
Shaffer and Jones have failed to place detainee rights or rights of the accused in the jail.
Jones and Shaffer allow unsanitary conditions to persist in the jail, including black mold
in the showers, and rust on the eating tables.
Shaffer and Lt. Skobel (who is not a Defendant) have interfered with Plaintiff’s legal
mail/material. They have also confiscated and/or destroyed items, including personal pictures, in
Plaintiff’s incoming personal mail, without documenting what items were confiscated.
Shaffer deactivated Plaintiff’s telephone PIN account for approximately 7 months,
preventing Plaintiff from calling family, civil attorneys, and his criminal attorney. (Doc. 1, p. 5).
Over the 8-10 months prior to the filing of this action, Plaintiff has been issued multiple
writs of habeas corpus by the Jackson County State’s Attorney, ordering him to appear in court
in Jackson County. However, Jones and Shaffer have repeatedly failed to honor the writs and
refused to bring Plaintiff to court on multiple occasions. The most recent of these incidents was
on May 26, 2017. Plaintiff alleges that their refusal to transport him has prolonged his detention
and impeded his right to a fair legal process. Id.
Plaintiff has been refused legal material, despite his multiple requests and filing of
grievances.
Plaintiff’s final complaint is that cameras are set up in his cell, violating his personal

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privacy.
Plaintiff seeks monetary damages for the violations of his rights. (Doc. 1, p. 6).
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 Complaint but not addressed in this Order should be considered dismissed
without prejudice.
Count 1: Shaffer has denied Plaintiff access to a grievance process in the jail;
Count 2: Shaffer prevented and/or delayed Plaintiff’s access to medical care;
Count 3: Shaffer punished Plaintiff with segregation without due process;
Count 4: Shaffer and Jones subjected Plaintiff to unsanitary conditions in the
jail;
Count 5: Shaffer interfered with Plaintiff’s legal mail;
Count 6: Shaffer confiscated and/or destroyed Plaintiff’s incoming personal
mail;
Count 7: Shaffer revoked Plaintiff’s telephone privileges, hindering contact with
Plaintiff’s attorneys and family members for 7 months;
Count 8: Jones and Shaffer refused to honor writs to transport Plaintiff to
Jackson County for court appearances, prolonging his detention and interfering
with his pending prosecution;
Count 9: Shaffer and Jones failed to post detainee’s rights/rights of the accused
in the jail, and unnamed parties have denied Plaintiff access to legal material;
Count 10: Plaintiff is subjected to camera surveillance in his cell.
Count 3 shall proceed for further consideration against Shaffer. The remaining claims

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(Counts 1, 2, and 4-10) shall be dismissed for failure to state a claim upon which relief may be
granted. Jones shall also be dismissed from the action, as none of the claims against him survive
threshold review.
Dismissal of Count 1 – Access to Grievance Procedure
Plaintiff’s inability to access the jail’s grievance procedure or obtain a response to his
complaints does not give rise to a viable claim. An official’s mishandling or failure to respond to
grievances does not implicate any constitutional right.
Plaintiff’s efforts to exhaust his administrative remedies by using the jail’s grievance
process may be relevant in the event that a Defendant raises a challenge to Plaintiff’s ability to
maintain a § 1983 suit over the substantive matters raised in the grievances. See 42 U.S.C.
§ 1997e(a); Pavey v. Conley, 544 F.3d 739, 740 (7th Cir. 2008). Nonetheless, a Defendant’s
action or inaction in handling Plaintiff’s grievances does not support an independent
constitutional claim. “[A] state’s inmate grievance procedures do not give rise to a liberty
interest protected by the Due Process Clause.” Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th
Cir. 1996). The Constitution requires no procedure at all, and the failure of prison or jail
officials to follow their own procedures does not, of itself, violate the Constitution. Maust v.
Headley, 959 F.2d 644, 648 (7th Cir. 1992); Shango v. Jurich, 681 F.2d 1091, 1100-01 (7th Cir.
1982).

For these reasons, the claim in Count 1 shall be dismissed from the action with

prejudice.
Dismissal of Count 2 – Denial/Delay in Medical Care
Pretrial detainees such as Plaintiff are not covered by the Eighth Amendment. Instead,
their claims for deliberate indifference to medical care are considered under the due process
clause of the Fourteenth Amendment, and detainees are entitled to the same sort of protection

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against deliberate indifference as convicted inmates, no less. See Williams v. Romana, 411 F.
App’x 900, 901 n.1 (7th Cir. 2011); Miller v. Hertz, 420 F. App’x 629, 634 (7th Cir. 2011). To
state a claim for deliberate indifference to medical care, a detainee must show that (1) he
suffered from an objectively serious condition which created a substantial risk of harm, and (2)
the defendants were aware of that risk and intentionally disregarded it. Minix v. Canarecci, 597
F.3d 824, 831 (7th Cir. 2010); Jackson v. Ill. Medi-Car, Inc., 300 F.3d 760, 764-65 (7th Cir.
2002). “Delaying treatment may constitute deliberate indifference if such delay exacerbated the
injury or unnecessarily prolonged an inmate’s pain.” Gomez v. Randle, 680 F.3d 859, 865 (7th
Cir. 2012) (internal citations and quotations omitted). However, evidence that a defendant acted
negligently does not raise a claim for deliberate indifference. Jackson, 300 F.3d at 764-65.
A medical need is “serious” for deliberate indifference purposes where it is “one that has
been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay
person would easily recognize the necessity for a doctor's attention.” Gutierrez v. Peters, 111
F.3d 1364, 1371 (7th Cir. 1997).
Here, Plaintiff asserts that Shaffer confiscated the medical requests Plaintiff intended for
the jail’s medical staff, and “made his own diagnosis” of Plaintiff’s ailment(s). Shaffer’s actions
delayed Plaintiff’s attempts to obtain a medical examination or treatment. (Doc. 1, p. 5). If
Shaffer caused Plaintiff to be unable to receive care for a serious ailment or condition, or delayed
Plaintiff’s access to care, Plaintiff may have a viable Fourteenth Amendment claim against
Shaffer. However, the Complaint does not include any information regarding the nature of
Plaintiff’s medical complaints. As a result, the Court cannot conclude that Plaintiff faced a risk
to his health that was serious enough to implicate constitutional concern. This alone must lead to
dismissal of the claim. Further, Plaintiff never says whether he ultimately did see a nurse or

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doctor, or whether he ever received treatment for his issues.
Because the Complaint does not demonstrate that Plaintiff suffered from a serious
medical condition, Count 2 shall be dismissed for failure to state a claim upon which relief may
be granted. The dismissal shall be without prejudice, however, and Plaintiff may re-plead this
claim in an amended complaint if he wishes to further pursue it.
Count 3 – Segregation Punishment without Due Process
Generally, confinement of pretrial detainees may not be punitive, because “under the Due
Process Clause, a detainee may not be punished prior to an adjudication of guilt.” Bell v.
Wolfish, 441 U.S. 520, 535 (1979).

Thus, conditions of pretrial confinement must be

“reasonably related to a legitimate governmental objective.” Id. at 539. See also Board v.
Farnham, 394 F.3d 469, 477 (7th Cir. 2005); Murphy v. Walker, 51 F.3d 714, 718 (7th Cir.
1995); Brownell v. Figel, 950 F.2d 1285, 1289 (7th Cir. 1991). The Seventh Circuit has
indicated that “any nontrivial punishment of a [pretrial detainee is considered] a sufficient
deprivation of liberty to entitle him to due process of law.” Holly v. Woolfolk, 415 F.3d 678,
679-80 (7th Cir. 2005).

Thus, “[a] pretrial detainee cannot be placed in segregation as a

punishment for a disciplinary infraction without notice and an opportunity to be heard; due
process requires no less.” Higgs v. Carver, 286 F.3d 437, 438 (7th Cir. 2002). Procedural
protections are required within a reasonable time of the imposition of any punishment. See
Holly, 415 F.3d at 680-82 (hearing for detainee within 48 hours of placement in segregation did
not violate due process; hearing need not take place prior to imposition of punishment); see
generally Wolff v. McDonnell, 418 U.S. 539 (1974). On the other hand, “no process is required
if [a pretrial detainee] is placed in segregation not as punishment but for managerial reasons.”
Higgs, 286 F.3d at 438.

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In Wolff, 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 a disciplinary segregation, or is otherwise subjected to some comparable deprivation
of a constitutionally protected liberty interest. Id. at 556-72.
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 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 (1985); see also Scruggs v. Jordan, 485 F.3d
934, 941 (7th Cir. 2007); Black v. Lane, 22 F.3d 1395, 1402 (7th Cir. 1994).
In Plaintiff’s Complaint, he states that Shaffer placed him in segregation “multiple times”
without holding any type of disciplinary hearing, and without furnishing Plaintiff with a copy of
any report of misconduct to support the disciplinary action. While Plaintiff does not give further
details, even this brief recitation is sufficient to state a claim at this stage, because Plaintiff
alleges that he received no process whatsoever in connection with his disciplinary confinement.
Accordingly, Plaintiff’s Fourteenth Amendment due process claim in Count 3 shall proceed for
further review against Shaffer.
Dismissal of Count 4 – Unsanitary Conditions
Claims relating to a pretrial detainee’s conditions of confinement arise under the
Fourteenth Amendment, rather than the Eighth Amendment. See Weiss v. Cooley, 230 F.3d
1027, 1032 (7th Cir. 2000). Nonetheless, the Seventh Circuit has “found it convenient and

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entirely appropriate to apply the same standard to claims arising under the Fourteenth
Amendment (detainees) and Eighth Amendment (convicted prisoners) ‘without differentiation.’”
Board v. Farnham, 394 F.3d 469, 478 (7th Cir. 2005) (quoting Henderson v. Sheahan, 196 F.3d
839, 845 n.2 (7th Cir. 1999)). Thus, for ‘cruel and unusual punishment’ claims brought by a
detainee, the plaintiff must show that the jail officials knew that the plaintiff was at risk of
serious harm, and that they disregarded that risk by failing to reasonably discharge the risk.
Grieveson v. Anderson, 538 F.3d 763, 771-72, 777-79 (7th Cir. 2008).
Plaintiff points to 2 objectionable conditions in the jail – the showers were contaminated
with black mold and had no lighting, and the tables where Plaintiff and other inmates ate their
meals were covered with rust. (Doc. 1, p. 5). He does not, however, allege that he suffered any
health problems as a result of these conditions.

Nor does Plaintiff indicate whether he

complained to either of the Defendants about these conditions, or describe the Defendants’
responses to any complaints he may have made. As a result, the Complaint does not establish
that Plaintiff faced an objectively serious risk of harm from either the black mold or the rusty
tables. Likewise, it does not demonstrate that either Shaffer or Jones was aware of a serious risk
to Plaintiff’s health, yet failed to take steps to correct the conditions. In summary, Plaintiff fails
to state a claim upon which relief may be granted for the conditions claim in Count 4. This
claim shall therefore be dismissed without prejudice.
Dismissal of Count 5 – Legal Mail
Under the First Amendment, inmates have the right to send and receive mail, subject to
their mail being examined to ensure that it does not contain contraband. Rowe v. Shake, 196
F.3d 778, 782 (7th Cir. 1999). A prisoner’s legal mail is entitled to greater privacy protection, in
order to avoid interference with the inmate’s right to access the courts. Id.; see also Kaufman v.

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McCaughtry, 419 F.3d 678, 685-86 (7th Cir. 2005). As such, letters clearly marked with an
attorney’s name and a notation that the item is legal mail must be opened only in the presence of
the inmate. See Wolff v. McDonnell, 418 U.S. 539, 576, 94 S. Ct. 2963, 41 L.Ed.2d 935 (1974);
Castillo v. Cook County Mail Room Dep’t, 990 F.2d 304, 305-06 (7th Cir.1993). Nonetheless,
the inadvertent or negligent occasional opening of a legal letter is not actionable. See, e.g.,
Bryant v. Winston, 750 F. Supp. 733 (E.D. Va. 1990).
In Plaintiff’s case, he does not describe Shaffer’s conduct underlying the claim that
Shaffer “interfered” with Plaintiff’s legal mail. (Doc. 1, p. 5). The bare conclusion that some
activity constituted “interference” is not enough to state a viable constitutional claim. See
Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). Plaintiff must flesh out this claim with
supporting factual allegations if he wishes to pursue it. Count 5 shall be dismissed at this time
for failure to state a claim upon which relief may be granted.
Dismissal of Count 6 – Personal Mail
The First Amendment right to receive mail includes correspondence of a personal nature,
again, subject to examination by jail officials to screen for contraband. Rowe v. Shake, 196 F.3d
778, 782 (7th Cir. 1999). An isolated disruption of mail service will not violate the Constitution.
Although the First Amendment “applies to communications between an inmate and an outsider,”
a valid claim requires an allegation that there has been “a continuing pattern or repeated
occurrences” of denial or delay of mail delivery. Zimmerman v. Tribble, 226 F.3d 568, 572 (7th
Cir. 2000) (“Allegations of sporadic and short-term delays in receiving mail are insufficient to
state a cause of action grounded upon the First Amendment.” (citing Rowe, 196 F.3d at 782;
Sizemore v. Wiliford, 829, F.2d 608, 610 (7th Cir. 1987))).
Here, Plaintiff claims that Shaffer confiscated or destroyed personal pictures contained in

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his incoming mail, and gave him no documentation of the items that were confiscated. The
Complaint does not disclose whether this was an isolated incident or part of an ongoing pattern
of personal mail disruption. Without more factual content, the Court cannot conclude that
Plaintiff has stated a First Amendment claim upon which relief may be granted. Therefore,
Count 6 shall also be dismissed without prejudice.
Dismissal of Count 7 – Telephone Access
The Supreme Court has recognized that “[p]rison walls do not form a barrier separating
prison inmates from the protections of the Constitution,” Turner v. Safley, 482 U.S. 78, 84
(1987), “nor do they bar free citizens from exercising their own constitutional rights by reaching
out to those on the ‘inside.’ ” Thornburgh v. Abbott, 490 U.S. 401, 407 (1989). The federal
courts have accordingly held that inmates retain their First Amendment rights to communicate
with family and friends, including reasonable access to the telephone. Nonetheless, inmates do
not have the right to unlimited telephone usage, and the security problems inherent in
correctional facilities may lead to restrictions on inmates’ telephone use. Martin v. Tyson, 845
F.2d 1451, 1457 (7th Cir. 1988), cert. denied, 488 U.S. 863 (1988) (citing Martin v. Brewer, 830
F.2d 76, 78 (7th Cir. 1987)). The exact nature of telephone service to be provided to inmates is
generally to be determined by prison administrators, “subject to court scrutiny for unreasonable
restrictions.” Washington v. Reno, 35 F.3d 1093, 1100 (6th Cir. 1994); see also Strandberg v.
City of Helena, 791 F.2d 744, 747 (9th Cir. 1986). An unreasonable restriction on prisoners’
telephone access may violate the First and Fourteenth Amendment. Tucker v. Randall, 948 F.2d
388, 391 (7th Cir. 1991). Denial of attorney telephone calls may, under some circumstances,
also run afoul of the Sixth and First Amendments. Id.
In Plaintiff’s case, he states that Shaffer deactivated his telephone PIN account,

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preventing him from making phone calls “with my own account for a period of about (7)
months.” (Doc. 1, p. 5). The reason for this action is not clear from the Complaint, and
Plaintiff’s wording implies that he may still have been able to engage in telephone calls during
the period in question. Either way, it does not appear that Plaintiff was completely barred from
communicating with his family or attorneys. He retained the ability to write to them, and he did
not allege that he was prohibited from receiving visitors. More importantly, Plaintiff does not
allege that Shaffer’s deactivation of his PIN account adversely affected his access to legal
representation in his pending criminal case, or otherwise restricted his access to the courts.
Without some indication that Plaintiff was denied access to counsel or to the courts, or
that he was unreasonably prevented from communicating with family, the Complaint does not
support a viable constitutional claim. At this time, Count 7 shall be dismissed without prejudice.
Dismissal of Count 8 – Failure to Transport Plaintiff/Access to Court
Prisoners have a fundamental right of meaningful access to the courts. Bounds v. Smith,
430 U.S. 817 (1977). This right of access extends to pretrial detainees as well as convicted
prisoners. See Casteel v. Pieschek, 3 F.3d 1050, 1053 (7th Cir. 1993). One of the requirements
to state a claim for denial of access to the courts is that a plaintiff must show “some quantum of
detriment caused by the challenged conduct of state officials resulting in the interruption and/or
delay of plaintiff’s pending or contemplated litigation.” Alston v. DeBruyn, 13 F.3d 1036, 1041
(7th Cir. 1994); Jenkins v. Lane, 977 F.2d 266, 268 (7th Cir. 1992); Shango v. Jurich, 965 F.2d
289, 291 (7th Cir. 1992); Howland v. Kilquist, 833 F.2d 639, 642-43 (7th Cir. 1987); Hossman v.
Sprandlin, 812 F.2d 1019, 1021 n.2 (7th Cir. 1987). That means that a detriment must exist, a
detriment resulting from illegal conduct that affects litigation. It does not mean that any delay is
a detriment. Kincaid v. Vail, 969 F.2d 594, 603 (7th Cir. 1992), cert. denied, 506 U.S. 1062

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(1993). Regardless of the length of an alleged delay, a prisoner must show actual substantial
prejudice to specific litigation. Kincaid, 969 F.2d at 603.
Here, Plaintiff asserts that the progress of his Jackson County criminal prosecution was
delayed when Jones and Shaffer refused on several occasions to bring him to court in accordance
with writs issued for his appearance. (Doc. 1, p. 5). The most recent of these incidents was on
May 26, 2017. According to Plaintiff, his absence from these scheduled hearings has prolonged
his detention and “imped[ed] [his] right to a fair legal process.” Id.
Notably, Plaintiff was transferred back to the Jackson County Jail at some point after
May 26, 2017, and he continues to be incarcerated in that location. While Plaintiff alleges that
his detention has been prolonged because of Defendants’ failure to transport him to court in
Jackson County, this claim is belied by the docket record in Plaintiff’s pending case.1 Plaintiff’s
attorney filed motions to continue his case on June 28, 2016; February 14, 2017; March 28,
2017; and July 6, 2017; all of which were granted. The docket also notes that as of November 7,
2016, Plaintiff was being held in the Franklin County Jail on other charges filed in that county.
Under these circumstances, Jones and Shaffer’s refusal to transport Plaintiff to court does not
appear to have caused any detriment to Plaintiff’s pending prosecution or lengthened his
incarceration.
Count 8 shall also be dismissed from the action without prejudice.
Dismissal of Count 9 – Legal Material
“[T]he mere denial of access to a prison law library or to other legal materials is not itself

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The docket sheet for Jackson County Case No. 2015-CF-407 is available on www.judici.com (last
visited on Sept. 6, 2017). Court documents are public records of which the Court can take judicial notice.
See Henson v. CSC Credit Servs., 29 F.3d 280, 284 (7th Cir. 1994); see also Bova v. U.S. Bank, N.A., 446
F. Supp. 2d 926, 930 n.2 (S.D. Ill. 2006) (a court may judicially notice public records available on
government websites) (collecting cases).

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a violation of a prisoner’s rights; his right is to access the courts, and only if the defendants’
conduct prejudices a potentially meritorious challenge to the prisoner’s conviction, sentence, or
conditions of confinement has this right been infringed.” Marshall v. Knight, 445 F.3d 965, 968
(7th Cir. 2006). A prisoner’s complaint must “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.” Id.
Here, Plaintiff says nothing about the nature of the materials he requested, and does not
claim that the denial of access to the material had any impact on his ability to defend himself in
his pending criminal matters, or on any other litigation. Likewise, his complaint about Jones’
and Shaffer’s failure to post information on detainee’s rights or rights of the accused does not
indicate that Plaintiff suffered any detriment to his court cases because of their omission. As
such, Count 9 fails to state a claim upon which relief may be granted, and shall be dismissed.
Dismissal of Count 10 – Camera Surveillance
The Supreme Court has established that prisoners do not have a reasonable expectation of
privacy in their cells. Hudson v. Palmer, 468 U.S. 517, 525-30 (1984). The Court explained: “A
right of privacy … is fundamentally incompatible with the close and continual surveillance of
inmates and their cells required to ensure institutional security and internal order.” Hudson, 468
U.S. at 527-28 (emphasis added). Based on this authority, a prisoner will not be able to sustain a
Fourth Amendment claim for violation of privacy rights as a result of cell monitoring. The
Seventh Circuit further observed, in addressing claims filed by a pretrial detainee who was
subject to video surveillance while unclothed: “[M]onitoring of naked prisoners is not only
permissible … but also sometimes mandatory. Inter-prisoner violence is endemic, so constant
vigilance without regard to the state of the prisoners’ dress is essential. Vigilance over showers,

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vigilance over cells – vigilance everywhere, which means that guards gaze upon naked inmates.”
Johnson v. Phelan, 69 F.3d 144, 146 (7th Cir. 1995).
In the case at bar, the totality of Plaintiff’s stated claim is: “Cameras set up in cell
violation [sic] of personal privacy.” (Doc. 1, p. 5). According to the precedent above, however,
camera surveillance of his jail cell does not violate any constitutional right. Count 10 shall
therefore be dismissed. Out of an abundance of caution, the dismissal shall be without prejudice.
Pending Motion
Plaintiff’s motion for recruitment of counsel (Doc. 3) shall be referred to the United
States Magistrate Judge for further consideration.
Disposition
COUNT 1 is DISMISSED with prejudice for failure to state a claim upon which relief
may be granted. COUNTS 2, 4, 5, 6, 7, 8, 9, and 10 are DISMISSED without prejudice for
failure to state a claim upon which relief may be granted.
JONES is DISMISSED from the action without prejudice.
In order for Plaintiff to proceed with the claim in COUNT 3, the Clerk of Court shall
prepare for SHAFFER: (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.

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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 a United States
Magistrate Judge for further pre-trial proceedings, which shall include a determination on the
pending motion for recruitment of counsel (Doc. 3).
Further, this entire matter shall be REFERRED to the United States Magistrate Judge 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

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for want of prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: September 7, 2017

s/J. Phil Gilbert
United States District Judge

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