Coleman v. Lindenberg et al

Filing 7

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Signed by Judge Nancy J. Rosenstengel on 9/19/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DWAINE COLEMAN, # B-62923,
Plaintiff,
vs.
SGT. LINDENBERG,
C/O WASSON,
C/O CORNSTOBBLE,
SGT. TAYLOR,
UNKNOWN PARTY #2 (Intel Officer),
and AFSCME,
Defendants.

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Case No. 17-cv-767-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
This action contains eight claims that were severed from Plaintiff’s original lawsuit filed
in this Court on May 16, 2017, now pending as Coleman v. Lashbrook, et. al., Case No. 17-cv518-DRH-SCW. (Doc. 1). Plaintiff’s claims arose from his incarceration at Menard Correctional
Center, where he was confined when he brought this pro se civil rights action pursuant to
42 U.S.C. § 1983. Among other claims, Plaintiff alleges that Defendants violated his
constitutional rights by sexually harassing him, retaliating against him when he complained
about that treatment, and depriving him of due process.
In the Court’s initial case management order (Doc. 1), Counts 1-8 of the Complaint were
severed into the instant case pursuant to George v. Smith, 507 F.3d 605 (7th Cir. 2007). Four
other claims against different Defendants remained in the original action.
Counts 1-8 are now before the Court for the mandatory merits review under 28 U.S.C.
§ 1915A. Section 1915A requires the Court to screen prisoner complaints to filter out non1

meritorious 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). As explained below, the Court finds that some of Plaintiff’s claims
survive threshold review under § 1915A.
The Complaint
The portions of the Complaint (Doc. 2) that relate to Counts 1-8 are as follows:
Plaintiff arrived at Menard on March 1, 2017, and was placed in cell 814 on North Two
Segregation. On March 17, 2017, Sgt. Lindenberg “threatened and sexually harassed” Plaintiff.
(Doc. 2, p. 6). Plaintiff made a PREA (Prison Rape Elimination Act) complaint against
Lindenberg. On March 18, 2017, Lindenberg retaliated against Plaintiff by “taking [his] outside
recreation.” Id.
On March 30, 2017, Officers Wasson and Cornstobble told other inmates that Plaintiff
“was a homosexual snitch for making a PREA report on Sgt. Lindenberg.” Id. Wasson and
Cornstobble also walked past Plaintiff’s cell saying “PREA I suck dick” in an antagonistic
manner. Id. Plaintiff requested a crisis team. Sgt. Taylor retaliated against Plaintiff for this
request by stripping Plaintiff of all his property, without Plaintiff being found guilty of any rule
violation or receiving a shakedown or inventory slip listing the items confiscated.
Plaintiff was moved to cell 417, where Taylor, Cornstobble, and Wasson had “rigged” his
sink “so water would explode and soak [Plaintiff’s] cell.” (Doc. 2, p. 6). Plaintiff was injured
when, while attempting to avoid the “exploding” water, he fell and hurt his head, neck, and back.
Id. He was given no medical attention, and was in the cell “wet and in pain” for two days.
The Unknown Party #2 Intel Officer “insinuated retaliation for [the] PREA report and

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ridiculed [Plaintiff] and closed both investigations [“first time” and water incident] without
talking to any of [Plaintiff’s] listed witnesses.” (Doc. 2, p. 6).
AFSCME has created a policy that emboldens bad acts against inmates on the part of its
members. This is evidenced by AFSCME members who “routinely brag” that they can kill
inmates without repercussions. Plaintiff quotes Cornstobble as claiming that he could “kill one of
you scumbags and the union will protect me and even get me paid leave for my emotional
distress for murdering you.” (Doc. 2, p. 7).
Plaintiff seeks declaratory and monetary relief. (Doc. 2, p. 9).
Merits Review Pursuant to 28 U.S.C. § 1915A
Based on the allegations of the Complaint, the Court’s initial order (Doc. 1) divided the
pro se action into a number of claims. Of these, Counts 1-8 are included in this lawsuit. 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 (or in the Order at Doc. 1) should be considered dismissed without
prejudice.
Count 1:

Lindenberg subjected Plaintiff to cruel and unusual punishment by
threatening and sexually harassing him in violation of the Eight
Amendment;

Count 2:

Lindenberg retaliated against Plaintiff for making a PREA report
in violation of the First Amendment by taking his outside
recreation on March 18, 2017;

Count 3:

Wasson and Cornstobble retaliated against Plaintiff for making a
PREA report in violation of the First Amendment by telling other
inmates Plaintiff was a homosexual and antagonizing him outside
of his cell on March 30, 2017;

Count 4:

Taylor retaliated against Plaintiff for requesting a crisis team in
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violation of the First Amendment by stripping him of his property
without his being found guilty of any rule violations;
Count 5:

Taylor violated Plaintiff’s Fourteenth Amendment right to due
process by stripping him of his property without his being found
guilty of any rule violations and without providing him with a
shakedown or inventory slip for confiscated property;

Count 6:

Taylor, Cornstobble, and Wasson subjected Plaintiff to cruel and
unusual punishment in violation of the Eighth Amendment by
tampering with his sink causing water to erupt from it, which
resulted in Plaintiff sustaining injuries;

Count 7:

Intel Officer (Unknown Party # 2) violated Plaintiff’s Fourteenth
Amendment right to due process and retaliated against Plaintiff for
filing a PREA report in violation of the First Amendment by
closing investigations against Plaintiff without talking to Plaintiff’s
listed witnesses;

Count 8:

AFSCME has created an unconstitutional policy emboldening bad
acts on the part of its members, as evidenced by members,
including Cornstobble, bragging that they can kill inmates without
repercussions.

Counts 2, 3, 4, 6, and the retaliation portion of Count 7 shall proceed for further review in
this action. Counts 1, 5, 8, and the due process portion of Count 7 shall be dismissed pursuant to
§ 1915A.
Dismissal of Count 1 – Cruel and Unusual Punishment
Plaintiff claims that Lindenberg “threatened and sexually harassed” him on March 17,
2017. (Doc. 2, p. 6). This is Plaintiff’s complete account of this claim; he adds no factual
description of what statements or actions Lindenberg directed at him. As an Eighth Amendment
claim, this meager recitation fails.
In order to state a civil rights claim upon which relief may be granted, a complaint must
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 factual content must be sufficient to “allow[] the court

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to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court is obligated to accept factual allegations
as true. See Smith v. Peters, 631 F.3d 418, 419 (7th Cir. 2011). However, some factual
allegations may be so sketchy that they fail to provide sufficient notice of a plaintiff’s claim.
Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). Courts “should not accept as adequate
abstract recitations of the elements of a cause of action or conclusory legal statements.” Id.
Here, Plaintiff’s statement that Lindenberg threatened and harassed him is purely
conclusory and devoid of factual statements that would enable the Court to assess whether
Lindenberg’s actions violated the Eighth Amendment. For this reason, Count 1 shall be
dismissed without prejudice for failure to state a claim upon which relief may be granted.
Count 2 – Retaliation – Lindenberg
Plaintiff’s statement in support of this claim is brief as well, but it contains enough facts
to warrant further consideration. Following the harassment mentioned in Count 1, Plaintiff filed
a complaint against Lindenberg in the form of a PREA report. The next day, March 18, 2017,
Lindenberg took away Plaintiff’s outside recreation.
“A complaint states a claim for retaliation when it sets forth ‘a chronology of events from
which retaliation may plausibly be inferred.’” Zimmerman v. Tribble, 226 F.3d 568, 573 (7th Cir.
2000) (citation omitted). In this case, Plaintiff alleges that Lindenberg took an adverse action
against him by revoking a privilege, shortly after Plaintiff filed the PREA report. The filing of a
complaint, grievance, or lawsuit by a prisoner is activity protected under the First Amendment.
See Gomez v. Randle, 680 F.3d 859, 866 (7th Cir. 2012); Bridges v. Gilbert, 557 F.3d 541, 552
(7th Cir. 2009). The chronology in the Complaint arguably presents a colorable claim of
retaliation; therefore, the claim survives review under § 1915A. See Zimmerman, 226 F.3d at 574

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(reversing district court’s § 1915A dismissal because inmate’s allegations established that “the
exercise of his [First Amendment] right was closely followed by the retaliatory act”).
Accordingly, the retaliation claim in Count 2 against Lindenberg shall proceed for
further consideration.
Count 3 – Retaliation – Wasson & Cornstobble
Plaintiff claims that the PREA report he filed against Lindenberg triggered further
retaliation. On March 30, 2017, Officers Wasson and Cornstobble told other inmates that
Plaintiff “was a homosexual snitch” for making the report against Lindenberg, and remarked
“PREA I suck dick” when they walked past Plaintiff’s cell. (Doc. 2, p. 6).
At this stage, these verbal comments may be considered “adverse actions” for purposes of
a retaliation claim. A prisoner who is labeled as a “snitch” could become a target for violence at
the hands of other inmates. The references to Plaintiff being homosexual (whether true or false)
may also place him at risk. Wasson’s and Cornstobble’s alleged reference to Plaintiff’s PREA
report sufficiently suggests that their actions were meant to retaliate for Plaintiff’s protected
activity. The retaliation claim against Wasson and Cornstobble may therefore proceed under
Count 3.
Count 4 – Retaliation – Taylor
For this claim, Plaintiff alleges that he requested a crisis team. He does not say why, but
the narrative implies that he made this request on the heels of the “homosexual snitch” and
“PREA I suck dick” comments made by Wasson and Cornstobble within earshot of other
prisoners. (Doc. 2, p. 6). After Plaintiff’s crisis team request, Taylor “stripped” Plaintiff of “all
his property.” Plaintiff states he had not been found guilty of any rule violation. Taylor failed to
give Plaintiff any documentation of the confiscated items.

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At issue in a retaliation claim is whether the plaintiff experienced an adverse action that
would likely deter First Amendment activity in the future, and if the First Amendment activity
was “at least a motivating factor” in the defendant’s decision to take the retaliatory action.
Bridges v. Gilbert, 557 F.3d 541, 551 (7th Cir. 2009).
If Plaintiff can eventually present proof to demonstrate that Taylor’s confiscation of his
property was motivated by Plaintiff’s protected activity of requesting the intervention/assistance
of a crisis team, then he may prevail on this retaliation claim. Further factual development will
be required in order to evaluate this claim. Accordingly, Count 4 shall proceed for further
review.
Dismissal of Count 5 – Due Process
This due process claim against Taylor is based on the same facts that gave rise to the
retaliation claim in Count 4. As a due process claim, however, Taylor’s confiscation of
Plaintiff’s property without a disciplinary finding of guilt and without any record of the property
taken, does not amount to a civil rights violation.
The only constitutional right that might be implicated by these facts is Plaintiff’s right,
under the Fourteenth Amendment, to be free from a deprivation of his property by state actors
without due process of law. To state a claim under the due process clause of the Fourteenth
Amendment, Plaintiff must establish a deprivation of liberty or property without due process of
law. If the state provides an adequate remedy, Plaintiff cannot maintain a federal civil rights
claim. Hudson v. Palmer, 468 U.S. 517, 530-36 (1984) (availability of damages remedy in state
claims court is an adequate, post-deprivation remedy). The Seventh Circuit has found that
Illinois provides an adequate post-deprivation remedy in an action for damages in the Illinois
Court of Claims. Murdock v. Washington, 193 F.3d 510, 513 (7th Cir. 1999); Stewart v.

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McGinnis, 5 F.3d 1031, 1036 (7th Cir. 1993); 705 ILL. COMP. STAT. 505/8 (1995). The existence
of this state process means that Plaintiff may not pursue a Fourteenth Amendment due process
claim in this action. This is the case whether or not Plaintiff actually brings a case in the Illinois
Court of Claims.
Accordingly, Plaintiff’s civil rights claim in Count 5 shall be dismissed from this action
with prejudice. The dismissal of this claim, however, shall not preclude Plaintiff from bringing
his property claim in the Illinois Court of Claims if he is able to do so under the applicable rules.
Count 6 – Cruel & Unusual Punishment
The Eighth Amendment prohibition on cruel and unusual punishment forbids
unnecessary and wanton infliction of pain, and punishment grossly disproportionate to the
severity of the crime. Rhodes v. Chapman, 452 U.S. 337, 346 (1981) (quoting Gregg v. Georgia,
428 U.S. 153, 173 (1976)). Two elements are required to establish a violation of the Eighth
Amendment’s cruel and unusual punishments clause with regards to any conditions of
confinement in prison. First, an objective element requires a showing that the conditions deny the
inmate “the minimal civilized measure of life’s necessities,” creating an excessive risk to the
inmate’s health or safety. Farmer v. Brennan, 511 U.S. 825, 834 (1994). The objective
conditions must have resulted in an unquestioned and serious deprivation of basic human needs
such as food, medical care, sanitation, or physical safety. Rhodes v. Chapman, 452 U.S. 337, 347
(1981). The second requirement is a subjective element – establishing a defendant’s culpable
state of mind, which is deliberate indifference to a substantial risk of serious harm to the inmate
from those conditions. Farmer, 511 U.S. at 837, 842. The deliberate indifference standard is
satisfied if the plaintiff shows that the prison official acted or failed to act despite the official’s
knowledge of a substantial risk of serious harm from the conditions. Farmer, 511 U.S. at 842. It

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is well-settled that mere negligence is not enough. See, e.g., Davidson v. Cannon, 474 U.S. 344,
347-48 (1986).
An action such as knowingly housing an inmate in a cell that poses a health risk due to
unsanitary or unsafe conditions, may give rise to an Eighth Amendment claim. Similarly, a
guard’s use of excessive force against an inmate when such force is inflicted “maliciously and
sadistically” rather than in the context of “a good-faith effort to maintain or restore discipline”
may violate the Eighth Amendment. Wilkins v. Gaddy, 559 U.S. 34 (2010) (quoting Hudson v.
McMillian, 503 U.S. 1, 6 (1992)). Plaintiff’s claim under Count 6 has elements of both these
examples.
Plaintiff’s allegation that Taylor, Cornstobble, and Wasson intentionally tampered with
the sink in his cell (# 417) so that water would “explode” from it and soak the cell arguably
satisfies both the objective and subjective components of an Eighth Amendment claim. The
action of rigging the sink to spray water throughout the cell created a safety hazard. The risk of
physical harm posed by the sink in its altered condition may satisfy the objective element of the
claim. These Defendants may or may not have anticipated that Plaintiff could be injured by
falling when he moved to avoid the exploding water. However, the alleged purposeful tampering
demonstrates their deliberate indifference to the risk of harm to Plaintiff.
At this early stage, the cruel and unusual punishment claim in Count 6 may proceed
against Taylor, Cornstobble, and Wasson.
Count 7 – Due Process & Retaliation
This claim is against the “Intel Officer” designated as Unknown Party #2. Plaintiff’s brief
statement against this individual is that he “insinuated retaliation for [Plaintiff’s] PREA report,”
and closed “both” investigations of complaints brought by Plaintiff without talking to any of

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Plaintiff’s witnesses. (Doc. 1, p. 6). It appears from the Complaint that the “first” investigation
was regarding Plaintiff’s PREA report, and the other investigation was over the “water incident”
that resulted from the tampering described in Count 6. Id.
This claim has 2 components – first, a due process claim for the Unknown Party’s failure
to investigate Plaintiff’s complaints against prison officials. Secondly, Plaintiff’s language
suggests a retaliation claim for the Unknown Party’s decision to close the investigations without
completing them.
Plaintiff cannot maintain a due process claim based on the facts presented. Prisoners do
not have a constitutional right to have their grievances or complaints investigated through the
prison procedures for handling such matters. Prison grievance procedures or internal
investigatory procedures are not constitutionally mandated and thus do not implicate the Due
Process Clause per se. The Constitution requires no procedure at all, and the failure of state
prison officials to follow their own grievance/investigatory 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). As such, the alleged mishandling of a complaint “by persons
who otherwise did not cause or participate in the underlying conduct states no claim.” Owens v.
Hinsley, 635 F.3d 950, 953 (7th Cir. 2011). See also Grieveson v. Anderson, 538 F.3d 763, 772
n.3 (7th Cir. 2008); George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007); Antonelli v. Sheahan, 81
F.3d 1422, 1430 (7th Cir. 1996). This due process portion of the claim against the Intel
Officer/Unknown Party #2 shall therefore be dismissed.
Retaliation claims are evaluated under a different standard, as discussed above under
Counts 2, 3, and 4. To state a claim for retaliation, Plaintiff must have engaged in an activity
protected by the First Amendment (such as filing the PREA report), and then have suffered some

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adverse action that would likely deter such protected activity in the future. Further, the First
Amendment activity must have been “at least a motivating factor” in the Defendant’s decision to
take the retaliatory action. See Bridges v. Gilbert, 557 F.3d 541, 552 (7th Cir. 2009).
Plaintiff’s statement that the Intel Officer “insinuated retaliation for [Plaintiff’s] PREA
report” is ambiguous. Plaintiff may be saying that this Defendant retaliated against him for filing
the PREA report, by failing to investigate that same report, and also by closing the “water
incident” investigation without looking into Plaintiff’s complaint. If so, then the question is
whether closing the investigations can be considered an “adverse action” that will sustain a
retaliation claim. The failure to have one’s complaints investigated does not rise to the level of
adversity found in the other retaliation claims herein, and even if the investigation had been
completed, there is no guarantee that Plaintiff would have obtained any redress. Thus, the Intel
Officer’s inaction may not rise to the level of a retaliatory “adverse action.” Nonetheless, the
Court is reluctant to dismiss the claim at this early stage. In any event, before a claim can
proceed against the Unknown Party #2 Intel Officer, Plaintiff must identify him by name. At this
time, the retaliation portion of Count 7 survives review under § 1915A.
Dismissal of Count 8 – AFSCME
A plaintiff cannot proceed with a federal claim under § 1983 against a non-state actor.
See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999); Gayman v. Principal Fin. Servs.,
Inc., 311 F.3d 851, 852-53 (7th Cir. 2003). AFSCME, the American Federation of State, County,
and Municipal Employees, is a union that represents public employees in collective bargaining
regarding

their

pay,

benefits,

and

working

conditions.

See

AFSCME

website,

http://www.afscme.org/union/about (last visited Sept. 16, 2017). AFSCME as an organization is
not a governmental entity, but is a labor association. Unlike the individual correctional officers

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who may be members of the union, AFSCME itself is not a “state actor” that can be sued in a
civil rights action. Therefore, Plaintiff’s claims in Count 8 against AFSCME as a Defendant
shall be dismissed with prejudice, and AFSCME shall be dismissed from the action.
Identification of Unknown Defendant
Plaintiff shall be allowed to proceed with the retaliation portion of Count 7 against
Defendant Unknown Party #2 (Intel Officer). However, this Defendant must be identified with
particularity before service of the Complaint can be made on him. Where a prisoner’s complaint
states specific allegations describing conduct of individual prison staff members sufficient to
raise a constitutional claim, but the names of those defendants are not known, the prisoner should
have the opportunity to engage in limited discovery to ascertain the identity of those defendants.
Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 832 (7th Cir. 2009). Guidelines for
discovery will be set by the United States Magistrate Judge. Once the name of Defendant
Unknown Party #2 (Intel Officer) is discovered, Plaintiff shall file a motion to substitute the
newly identified defendant in place of the generic designation in the case caption and throughout
the Complaint.
Disposition
COUNT 1 is DISMISSED without prejudice for failure to state a claim upon which
relief may be granted.
COUNTS 5 and 8 are DISMISSED with prejudice for failure to state a claim upon
which relief may be granted. The due process portion of COUNT 7 is DISMISSED with
prejudice for failure to state a claim upon which relief may be granted; only the retaliation
portion of Count 7 shall proceed.
Defendant AFSCME is DISMISSED with prejudice.

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The Clerk of Court shall prepare for LINDENBERG, WASSON, CORNSTOBBLE,
and TAYLOR: (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, a copy of the Memorandum and Order at Doc. 1, 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
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.
Service shall not be made on the Unknown Party Defendant #2 (Intel Officer) until such
time as Plaintiff has identified this individual by name in a properly filed motion for substitution
of party. Plaintiff is ADVISED that it is Plaintiff’s responsibility to provide the Court with the
name and service address for this person.
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.
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 United States Magistrate
Judge Donald G. Wilkerson for further pre-trial proceedings.

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Further, this entire matter shall be REFERRED to United States Magistrate Judge
Wilkerson 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
for want of prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: September 19, 2017

___________________________
NANCY J. ROSENSTENGEL
United States District Judge

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