Braboy v. Illinois Department of Corrections et al

Filing 8

ORDER REFERRING CASE to Magistrate Judge Reona J. Daly. Signed by Judge David R. Herndon on 9/28/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DAMIEN BRABOY,
#R-57995,
Plaintiff,

Case No. 17 cv–922 DRH

vs.
ILLINOIS DEPARTMENT OF
CORRECTIONS,
MENARD CORRECTIONAL CENTER,
JACQUELINE A. LASHBROOK,
CALEB E. ZANG,
A. MASTERSON,
SGT. SNELL,
K. ELLIS, and
C/O GRAVES,
Defendants.

MEMORANDUM AND ORDER
HERNDON, District Judge:
Plaintiff Damien Braboy, an inmate in Menard Correctional Center, brings
this action pursuant to 42 U.S.C. § 1983 for deprivations of his constitutional
rights.

In his Complaint, Plaintiff claims the defendants were deliberately

indifferent to his serious medical issues, subjected him to unconstitutional
conditions of confinement, violated his due process rights, interfered with his
access to the courts, and retaliated against him in violation of the Eighth,
Fourteenth, and First Amendments. (Doc. 1). This case is now before the Court
for a preliminary review of the Complaint pursuant to 28 U.S.C. § 1915A, which
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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.
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).
Upon careful review of the Complaint and any supporting exhibits, the
Court finds it appropriate to allow this case to proceed past the threshold stage.
The Complaint
In his Complaint (Doc. 1), Plaintiff makes the following allegations:

on

March 28, 2017, Plaintiff was passing out personal property for his job at Menard

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when an inmate, Bridge, asked Plaintiff whether he was spreading rumors about
his sexual orientation. (Doc. 1, p. 4). Plaintiff denied doing so, but Bridge threw
a mixture of water and bleach into Plaintiff’s eyes, threw coffee into his face, and
began assaulting Plaintiff through the bars of his cell while Plaintiff could not see.

Id.
Plaintiff went to the Health Care Unit (“HCU”) seeking medical attention for
his eyes. (Doc. 1, p. 5). He reported what happened to Defendant Graves, who
was working at the HCU, but Graves disregarded Plaintiff’s report, directed him to
return to his job, and denied Plaintiff medical attention. Id. Shortly thereafter,
Plaintiff was called back to the HCU to be questioned about the incident.

Id.

Plaintiff told Defendant Snell what had occurred. Id.
Generally, “5 gal[lery] C/Os must be present when property workers are
passing out property to inmates. Before property is to be issued, the property
officer must contact the gallery officer whose gallery is receiving property so that
they are aware that property needs to be passed out.”

Id.

Upon Plaintiff’s

information and belief, the “5 gal[lery] C/O was notified but was not present when
plaintiff arrived” to the gallery, and Plaintiff was allowed to enter it by other C/Os,
so he could perform his job duties. (Doc. 1, pp. 5-6). Plaintiff was not questioned
about the presence or lack thereof of the 5 gallery C/O. (Doc. 1, p. 6). Instead,
Snell became “verbally abusive toward Plaintiff stating, ‘someone finally got your
puss-ass, that’s what you get, and if this incident goes beyond this interview I’ll
see to it that you never get a job in Menard again.’” Id. Plaintiff told Snell that he

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had not done anything to be assaulted. Id.
Bridge later admitted to Snell that he assaulted Plaintiff.

Id.

Plaintiff

believes the defendants assumed he would file a complaint highlighting the
correctional officers’ failure to carry out their duties, so they retaliated against
him by placing him under investigation in disciplinary segregation despite this
admission by Bridge. Id. Plaintiff believes they did this to intimidate him so that
he would not file a complaint. (Doc. 1, p. 7). The offense and observation in
Plaintiff’s investigative report, which was written March 28, 2017 by Defendant
Masterson, did not provide the offense Plaintiff was alleged to have committed and
did not inform Plaintiff of the subject of the investigation. Id. Defendants further
retaliated against Plaintiff by replacing his investigative report with a disciplinary
report, written March 30, 2017 by Defendant Zang, charging Plaintiff with
conspiracy, assault, and intimidation and threats on the inmate who had admitted
to assaulting Plaintiff. Id. This was done in an attempt to intimidate Plaintiff,
prevent him from filing a complaint, and justify placing him in segregation. Id.
The adjustment committee dismissed the ticket April 4, 2017 due to insufficient
information. Id.
Plaintiff sought redress through the grievance procedure on April 4, 2017.
(Doc. 1, p. 8). He brought his grievance against Zang and Masterson for unlawful
placement in segregation. Id. He also claimed that he feared for his safety which
may have been compromised by Zang and Masterson, who employed intimidation
and threat tactics on him. Id. Plaintiff also sought redress through the grievance

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procedure for his not being allowed to return to the assignment he held prior to
being removed without justifiable cause.

Id.

Plaintiff had been competent in

performing his assignment, and he never requested a change from it. Id. Plaintiff
was stripped of his assignment and never reassigned as a result of the incident on
March 28, 2017 and the subsequent grievances. Id. “Staff recommendation for
removal was more than likely the driving factor.” Id. However, Lashbrook or the
assignment officer should have done it, if at all, pursuant to Section 420.30.
(Doc. 1, p. 9).

Instead, Lashbrook “made the ‘Administrative decision’ absent

compliance with Section 420.30, and . . . in bad faith.” Id. Plaintiff was denied
the opportunity to appear before the Assignment Officer as his case was being
considered. Id. No sufficient reason or rationale was provided for Plaintiff being
stripped of his assignment, but Defendant Lashbrook approved it nonetheless.

Id.
Plaintiff was released from segregation on April 4, 2017.

Id. April 19,

2017, “upon many oral complaints of lack of clear vision (e.g., constant blurred
sight, and sometimes double vision off and on) and a grievance filed April 4,
2017, in part, complaining of being denied medical attention, etc., Plaintiff wrote
Defendant Lashbrook” regarding the aforementioned allegations. (Doc. 1, pp. 910).

He did not receive a response.

(Doc. 1, p. 10).

Plaintiff also filed an

informal complaint with the Illinois State Police. Id. Plaintiff also had his family
contact Lashbrook regarding these incidents, but they have not gotten a response.

Id.

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Around April 19, 2017, Zang interviewed Plaintiff after having noticed the
April 4, 2017 grievance Plaintiff filed against him. Id. Zang “was not supposed to
engage in said investigation involving Plaintiff” because he was a subject of
Plaintiff’s complaints.

Id.

During the interview, Zang’s comments toward

“Plaintiff were inappropriate and a threat to [his] safety where Plaintiff was told by
[Zang] that Plaintiff had [made a mistake] by filing grievances and complaints
against defendant and various co-workers at Menard because a lot of inmates
had/have respect for defendant and that other inmates would label Plaintiff a
‘snitch,’ ‘stool-pigeon,’ or ‘informant.’” (Doc. 1, pp. 10-11). Zang threatened to
have Plaintiff placed into protective custody so that he “could isolate / limit
Plaintiff’s movement, monitor, intervene, and/or interrupt Plaintiff’s activities.”
(Doc. 1, p. 11).

Zang threatened segregation because Plaintiff had family

members call IDOC to report the incidents to John Baldwin, the acting director,
and so that Plaintiff would no longer have phone privileges. Id.
On or about April 19, 2017, Plaintiff sent an emergency grievance to
Lashbrook detailing the conduct of Zang.

Id. Lashbrook failed to investigate

Plaintiff’s issues and failed to expedite his grievance. (Doc. 1, p. 12). Plaintiff
filed the grievance with Counselor Niepert, per Lashbrook’s response, but Niepert
provided an adverse decision on May 10, 2017.

Id.

Plaintiff forwarded the

grievance to the grievance officer at Menard, but he received no reply even after
writing many times asking for a response.

Id.

Plaintiff eventually received a

response from an unknown staff member to his final letter submitted to the

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grievance officer that had the original grievance attached, stating that the
grievance was received but that it was “OTF.” (Doc. 1, p. 13). Plaintiff forwarded
all of his documents to the Administrative Review Board (“ARB”) on August 11,
2017. (Doc. 1, p. 14).
On or about April 19, 2017, Plaintiff was taken to the HCU for medical
attention for his eyes. (Doc. 1, pp. 14-15). When in the HCU, while Plaintiff and
the doctor were conversing about the incident that caused Plaintiff’s injury,
Defendant Ellis interjected, telling him there was nothing wrong with him, that he
looked fine to her, and that he was “cry[ing] like a little girl because [he] got some
toilet water threw in [his] eyes].” (Doc. 1, p. 15). These statements were made in
bad faith and with the objective to harass Plaintiff. Id. Plaintiff filed a grievance
in which he included that, as a result of Ellis’s conduct, he “felt that his life was in
danger of being harmed or mistreated through receipt of any further medical
and/or mental health assistance . . . and that he may be subjected to ‘overt’
extensive cell shakedowns (searches), or having things planted on his person” due
to defendants’ “nepotism and acts of cronyism.” (Doc. 1, p. 16).
Lashbrook prematurely and in bad faith concurred with the administrative
staff’s recommendation to deny Plaintiff’s April 4, 2017 grievance absent an
investigation.

Id.

Her “conscious objective was to intentionally undermine

Plaintiff’s serious medical needs.” (Doc. 1, pp. 16-17). Overwhelmed with the
situation, and with defendants acting “with conscious disregard to [his] issues and
needs, . . . Plaintiff has contemplated suicide and was placed on ‘Crisis Watch’

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from May 8, 2017 to May 10, 2017.” (Doc. 1, p. 17). Plaintiff ultimately signed in
to protective custody in fear of retaliatory acts by Zang and others. Id. “Plaintiff
still feels unsafe where he is laughed at, on line-movement in PC, by defendant’s
co-workers who continuously pick at Plaintiff’s psyche with comments such as
‘look at the cry-baby Braboy in PC.’” Id. Plaintiff has a long history of self-harm
and medication overdose, and he has recurring flashbacks due to the stress of the
situations detailed in the Complaint. (Doc. 1, p. 18). Plaintiff’s conditions of
confinement have “an adverse psychological consequence such as self-harm,
extreme paranoia, and explosive impulse disorder, where Plaintiff may become
incompetent. Said conditions [have] an effect on his mental health.” (Doc. 1, p.
19).
Plaintiff requests monetary damages as well as injunctive relief. (Doc. 1,
pp. 37-38).
Discussion
Based on the allegations of the Complaint, the Court finds it convenient to
divide the pro se action into 12 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 –

Graves, Masterson, Zang, Snell, and Lashbrook violated
Plaintiff’s First Amendment rights by placing him in solitary
confinement in order to interfere with his ability to petition for
redress by report, complaint, or grievance.

Count 2 –

Snell and Lashbrook failed to protect Plaintiff from being
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attacked on March 28, 2017 by another inmate when
correctional officers allowed Plaintiff to enter a gallery
unsupervised.
Count 3 –

Lashbrook failed to intervene when Plaintiff was subjected to
retaliation, cruel and unusual punishment, unlawful detention,
harassment, and deliberate indifference to his medical needs
by individual defendants.

Count 4 –

Zang and Masterson subjected Plaintiff to unconstitutional
conditions of confinement by placing him in solitary
confinement in violation of the Eighth Amendment.

Count 5 –

Ellis subjected Plaintiff to cruel and unusual punishment in
violation of the Eighth Amendment when she harassed Plaintiff
while he sought medical attention.

Count 6 –

Lashbrook, Snell, Graves, Zang, and Masterson showed
deliberate indifference to Plaintiff’s serious medical need
involving the injury he sustained to his eyes on March 28, 2017
in violation of the Eighth Amendment.

Count 7 –

Lashbrook, Masterson, Snell, Graves, Ellis, and Zang
retaliated against Plaintiff for and/or exercised prior restraint
on Plaintiff to prevent Plaintiff from filing grievances and
otherwise complaining about his treatment, in violation of the
First Amendment.

Count 8 –

Lashbrook, Masterson, Snell, Graves, Ellis, and Zang violated
Plaintiff’s due process rights under the Fourteenth Amendment
by interfering with his liberty interests through their
unconstitutional actions.

Count 9 –

Illinois state law claim against Lashbrook, Masterson, Snell,
Graves, Ellis, and Zang for intentionally inflicting emotional
distress upon Plaintiff.

Count 10 – Conspiracy claim against Lashbrook, Masterson, Snell,
Graves, Ellis, and Zang under 42 U.S.C. § 1985 or the
common law.
Count 11 – Illinois state law claim against Lashbrook under a theory of
respondeat superior.

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Count 12 – Illinois state law claim against the Illinois Department of
Corrections for indemnification.
As discussed in more detail below, Counts 3, 6, 7, 9, and 12 will be allowed
to proceed past threshold. Any other intended claim that has not been recognized
by the Court is considered dismissed without prejudice as inadequately pleaded
under the Twombly pleading standard.
Count 1 – Access to Courts
Plaintiff asserts that his First Amendment rights were violated by Graves,
Masterson, Zang, Snell, and Lashbrook when he was placed in solitary
confinement for the purpose of “disallowing, impeding, or interfering with
Plaintiff’s right to seek or petition for redress by report, complaint, or grievance.”
(Doc. 1, p. 20). It is unclear whether Plaintiff seeks for this claim to focus on the
interference with his access to a grievance procedure at Menard or his access to
the courts. Under either theory, this claim fails.
First, prison grievance procedures are not constitutionally mandated, so if
Plaintiff had been denied access to the grievance procedure, this would not
necessarily implicate the constitution. Though the Prison Litigation Reform Act
(“PLRA”) requires prisoners to exhaust all available administrative remedies
before filing a suit in federal court, administrative remedies are considered to be
unavailable under the PLRA when prison officials fail to respond to a prisoner’s
grievances. 42 U.S.C. § 1997e(a); see also Lewis v. Washington, 300 F.3d 829,
833 (7th Cir. 2002) (citations omitted).

A plaintiff who can demonstrate the

unavailability of administrative remedies is relieved from the obligation to exhaust
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administrative remedies and can proceed with his or her suit. Lewis, 300 F.3d at
833. The Complaint therefore fails to state a First Amendment claim against any
of the defendants for allegedly attempting to interfere with Plaintiff’s ability to
grieve by placing him in segregation. His access to the courts could not have been
impeded by the alleged actions, as the unavailability of administrative remedies,
as explained above, is no bar to potential litigants bringing their claims.
To the extent Plaintiff seeks to bring a more general access to courts claim,
the Seventh Circuit uses a two-part test when determining whether the conduct of
a prison official violates an inmate’s right of access to the courts. Lehn v. Holmes,
364 F.3d 862, 868 (7th Cir. 2004).

First, the inmate must show that prison

officials failed “to assist 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.” Jenkins v. Lane, 977 F.2d 266, 268 (7th Cir. 1992)
(quoting Bounds v. Smith, 430 U.S. 817, 828 (1977)). Second, the inmate must
be able to 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);

see also Lehn, 364 F. 3d at 868.
A plaintiff must explain “the connection between the alleged denial of access
. . . and an inability to pursue a legitimate challenge to a conviction, sentence, or
prison conditions.” Ortiz v. Downey, 561 F.3d 664, 671 (7th Cir. 2009) (internal
quotation and citation omitted); accord Guajardo Palma v. Martinson, 622 F.3d

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801, 805-06 (7th Cir. 2010). This requires Plaintiff to identify the underlying
claim that was lost. See Christopher v. Harbury, 536 U.S. 403, 416 (2002); Steidl

v. Fermon, 494 F.3d 623, 633 (7th Cir. 2007). Plaintiff has not identified an
underlying claim that was lost due to his being briefly placed in segregation. In
fact, it appears that Plaintiff is pursuing any claims that could have been lost by
the alleged denial of access to the courts in the present action.
For the foregoing reasons, Count 1 is dismissed without prejudice for
failure to state a claim upon which relief may be granted.
Count 2 – Failure to Protect
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 to his safety. Pope v. Shafer,
86 F.3d 90, 92 (7th Cir. 1996). “A generalized risk of violence is not enough, for

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prisons are inherently dangerous places.”

Wilson v. Ryker, 451 F. App’x 588,

589 (7th Cir. 2011) (citing Brown v. Budz, 398 F.3d 904, 909, 913 (7th Cir.
2005); Riccardo v. Rausch, 375 F.3d 521, 525 (7th Cir. 2004). 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)).
To the extent Plaintiff seeks to implicate Lashbrook and Snell for the
actions of the 5 gallery C/O that neglected to accompany him on the day he was
attacked, or the C/Os who broke protocol and allowed Plaintiff into the gallery
without accompaniment, it is well established that “[f]or constitutional violations
under § 1983 ... a government official is only liable for his or her own
misconduct.” E.g., Locke v. Haessig, 788 F.3d 662, 669 (7th Cir. June 5, 2015).
“This means that to recover damages against a prison official acting in a
supervisory role, a § 1983 plaintiff may not rely on a theory of respondeat

superior and must instead allege that the defendant, through his or her own
conduct, has violated the Constitution.” Perez v. Fenoglio, 792 F.3d 768, 781 (7th
Cir. 2015) (citing Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)).

“An inmate's

correspondence to a prison administrator may . . . establish a basis for personal
liability under § 1983 where that correspondence provides sufficient knowledge of
a constitutional deprivation.” 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

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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 condition.”)). “In other words, prisoner
requests for relief that fall on ‘deaf ears’ may evidence deliberate indifference.”

Perez, 792 F.3d at 782.
Plaintiff does not allege that he informed Snell and Lashbrook of any
specific danger he faced prior to the date he was attacked. In fact, he does not
allege that he spoke with them at all prior to the attack. He also fails to allege any
facts that would imply that Lashbrook or Snell anticipated what happened to him
and could have but failed to prevent it. Instead, Plaintiff alleges that a 5 gallery
C/O neglected to carry out his established duties in accompanying Plaintiff while
he handed out property, not that anyone, much less Lashbrook or Snell, acted
with deliberate indifference to a “specific, impending, and substantial threat” to
Plaintiff’s safety. Count 2 will therefore be dismissed without prejudice.
Count 3 – Failure to Intervene
Plaintiff alleges that Lashbrook failed to intervene when the other
defendants subjected him to retaliation, cruel and unusual punishment,
harassment, and deliberate indifference to his medical needs. Further, Plaintiff
alleges that Lashbrook became aware of these alleged constitutional violations and
still concurred with the denial of Plaintiff’s April 4, 2017 grievance regarding
some of these issues, and similarly denied emergency review of an emergency
grievance filed by Plaintiff regarding the same. (Doc. 1, pp. 51, 53-54). Though

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somewhat vaguely, Plaintiff alleges that some of this activity that Lashbrook could
have protected him from is ongoing, including harassment he endures while on
line-movements and his being in protective custody for fear of retaliatory acts of
defendants, generally.
These allegations, construed liberally in favor of Plaintiff for screening
purposes, are sufficient to state a claim against Lashbrook for failing to intervene
in the retaliatory acts and prior restraint Plaintiff was subjected to, if nothing else.
Count 3 will therefore proceed past threshold.
Count 4 – Conditions of Confinement
Plaintiff alleges that Zang and Masterson subjected him to unconstitutional
conditions of confinement by placing him in solitary confinement.

An Eighth

Amendment claim for unconstitutional conditions of confinement has two
requirements. First, Plaintiff must demonstrate that he endured conditions that
were “sufficiently serious” to constitute cruel and unusual punishment (an
objective standard). This first element is satisfied when the plaintiff shows that he
was “incarcerated under conditions posing a substantial risk of serious harm” to
his health or safety. Haywood v. Hathaway, 842 F.3d 1026, 1031 (7th Cir. 2016)
(citing Sanville v. McCaughtry, 266 F.3d 724, 733 (7th Cir. 2001)).

Second,

Plaintiff must show that the defendants responded with deliberate indifference to
the inmate's health or safety (a subjective standard).

Farmer v. Brennan, 511

U.S. 825 (1994). This occurs when a defendant knows of and disregards a
substantial risk of serious harm to the inmate from those conditions. Id.

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The Complaint offers no allegations suggesting that the conditions Plaintiff
faced were sufficiently serious, nor that Zang or Masterson exhibited deliberate
indifference toward them. Plaintiff was allegedly in segregation for no longer than
seven days spanning sometime after he was assaulted March 28, 2017 to April 4,
2017. (Doc. 1, pp. 6, 9). He does not allege anything about the physical state of
the cell he was in. Plaintiff does not allege that either defendant knew, generally
or specifically, about any poor conditions he may have endured. No allegations
suggest that Plaintiff complained to any particular defendant, either verbally or in
writing, regarding his conditions in segregation during the brief time he spent
there. Plaintiff claims that “[i]solated confinement invades the sphere of the
intellect and the spirit [and] imposes serious injury to future health and safety,”
but fails to explain how or why the specific conditions he faced posed an actual
risk of harm to him. (Doc. 1, p. 24). Without more, Plaintiff has failed to state an
Eighth Amendment conditions of confinement claim upon which relief may be
granted. Count 4 will therefore be dismissed without prejudice.
Count 5 – Harassment
In DeWalt v. Carter, 224 F.3d 607 (7th Cir. 2000), the Seventh Circuit held
that “simple verbal harassment,” such as the use of racially derogatory language,
does not, standing alone, constitute cruel and unusual punishment. Id. at 612
(emphasis added). See also Dobbey v. Ill. Dep't of Corrections, 574 F.3d 443, 446
(7th Cir. 2009) (“[H]arassment, while regrettable, is not what comes to mind when
one thinks of ‘cruel and unusual’ punishment.”); Patton v. Przbylski, 822 F.2d

16

697, 700 (7th Cir. 1987) (although unprofessional and inexcusable, racially
derogatory remarks did not support a constitutional claim).
The Seventh Circuit recently revisited DeWalt's holding in Beal v. Foster,
803 F.3d 356 (7th Cir. 2015). In Beal, the plaintiff alleged that the defendant, a
sergeant, “‘made verbal sexual comments directed towards inmate Brian Anthony,
telling Ronald Beal to place his penis inside Brian Anthony,’ and that ‘on several
prior occasions’ [the defendant] had urinated in view of the plaintiff (by leaving the
bathroom door open) and of other inmates, looking at them ‘while smiling.’” Id.
at 358. Plaintiff also claimed that other inmates were calling him derisive terms
for homosexuals; conduct that may have been “inspired or encouraged” by the
defendant’s comments and that he “experienced severe psychological harm” as a
result of the defendant’s harassment.

Id. Plaintiff's Eighth Amendment claim

pertaining to the defendant's conduct was dismissed at screening.
The Appellate Court concluded that the dismissal was premature and in
doing so, clarified its prior holding in Dewalt. The Seventh Circuit explained that
“purely verbal” harassment can, under certain circumstances, amount to cruel
and unusual punishment. Id. at 357-58. To illustrate this point, the Appellate
Court discussed the following hypotheticals:
Suppose a prisoner is having severe headaches and he complains
about them to a prison doctor, who writes him a prescription for a
powerful drug. A malicious guard learns of this and tells the prisoner
the following lie: “the doctor didn't tell you, but he told me: you have
incurable brain cancer and will be dead in three months. Now let me
tell you what he told me are the symptoms you will be experiencing
as your cancer worsens.” Or the guard, again lying, tells another
prisoner: “I am sorry to have to inform you that your wife and
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children have been killed in a car crash.”

Id. at 357. The Seventh Circuit noted that, despite being “purely verbal,” the
harassment in both examples was “as cruel” as cases involving “physical
brutalization.”

Id.

Accordingly, the Court reasoned, drawing “a categorical

distinction between verbal and physical harassment is arbitrary.” In other words,
both physical and psychological pain can constitute cruel punishment. Id. at 35758.

In reaching this decision, the Court clarified that “simple,” as used to

describe verbal harassment in DeWalt, was the wrong word:
[I]t is unclear what “simple” is intended to connote. In our
hypothetical examples, the verbal harassment is “simple” in the sense
of being brief, lucid, and syntactically simple. But what is simple can
also, as in our two examples, be devastating. In DeWalt the plaintiff
had alleged that a prison officer had “made a series of sexually
suggestive and racially derogatory comments to [the plaintiff]
regarding certain female teachers at the prison schools.” Id. at 610.
This verbal harassment was directed, to a significant degree, at the
female teachers rather than at DeWalt, and second-hand harassment
may be too “simple” to state a claim of cruel and unusual
punishment, whereas the lies in our two hypothetical cases were
aimed directly and hurtfully at the prisoner. But “simple” is the
wrong word; what is meant is “fleeting,” too limited to have an
impact.

Beal, 803 F.3d at 358.
With these principles in mind, the Appellate Court concluded the dismissal
of the harassment claim was premature.

In reversing and remanding, the

Appellate Court specifically noted that the harassment allegedly resulted in severe
psychological trauma, was repetitive, was not purely verbal (urinating is not
verbal), may have endangered Plaintiff because it happened in front of other

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inmates, and may have carried more weight because the defendant was a
sergeant.
Here, although Ellis's conduct may constitute verbal harassment, it does
not come close to the type of serious harassment that is actionable in a § 1983
claim. It was not repetitive, it was purely verbal, Plaintiff does not allege that it
happened in front of other inmates, and Plaintiff does not attach any particular
significance to the fact that Ellis, and not another, made the alleged remarks. The
fact that Plaintiff alleges that these remarks were retaliatory has some
significance, but not for the purpose of this count. For these reasons, Count 5
will be dismissed without prejudice for failure to state a claim upon which relief
may be granted.
Count 6 – Deliberate Indifference to Medical Needs
State officials also violate the Eighth Amendment when they act with
deliberate indifference to an inmate's serious medical needs. Estelle v. Gamble,
429 U.S. 97, 104 (1976); Chatham v. Davis, 839 F.3d 679, 684 (7th Cir. 2016).
To state a claim, a plaintiff must demonstrate that he suffered from a serious
medical condition (i.e., objective standard) and the state official responded with
deliberate indifference (i.e., subjective standard). Petties v. Carter, 836 F.3d 722,
727-28 (7th Cir. 2016) (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994);

Berry v. Peterman, 604 F.3d 435, 440 (7th Cir. 2010)). The Complaint includes
allegations against the defendants that satisfy both components of this claim for
screening purposes.

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During the initial attack on March 28, 2017, Plaintiff had bleach water
thrown into his eyes and alleges he was temporarily blinded. He also claims to
have experienced blurred and double vision off and on following the incident. His
injuries were serious enough that he immediately went to the HCU for treatment
after he was assaulted, and was sent to the HCU again on or around April 19,
2017 for medical treatment. He alleges Graves refused to treat him the first time
he went to the HCU, and that his complaints to Lashbrook, in part requesting
medical care, also went unanswered for a period of time.

These allegations,

construed liberally in favor of Plaintiff for screening purposes, satisfy the objective
and subjective components of this claim against Graves and Lashbrook.
Accordingly, Count 6 shall receive further review against them. Plaintiff has not
included sufficient allegations against any of the other defendants so as to
implicate them for deliberate indifference to his medical needs, so Count 6 shall
be dismissed without prejudice against Snell, Zang, and Masterson.
Count 7 – Retaliation
The Complaint suggests that the verbal harassment described in Count 5
and throughout the complaint, Plaintiff’s brief placement in solitary confinement,
the disciplinary ticket issued against him, and the denial of his job once he was
cleared of his ticket were retaliatory or otherwise aimed at preventing him from
complaining about his treatment or filing grievances.

Prison officials may not

retaliate against inmates for filing grievances or otherwise complaining about their
conditions of confinement. See, e.g., Gomez v. Randle, 680 F.3d 859, 866 (7th

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Cir. 2012); Walker v. Thompson, 288 F.3d 1005 (7th Cir. 2002); DeWalt, 224
F.3d 607; Babcock v. White, 102 F.3d 267 (7th Cir. 1996); Cain v. Lane, 857 F.2d
1139 (7th Cir. 1988).

To establish a § 1983 claim of First Amendment

retaliation, an inmate must allege “(1) he engaged in activity protected by the First
Amendment; (2) he suffered a deprivation that would likely deter First
Amendment activity in the future”; and (3) a causal connection between the two.

Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009) (citation omitted).
In Bridges v. Gilbert, 557 F.3d 541 (7th Cir. 2009), the Seventh Circuit
indicated that threatening to file a grievance or a lawsuit is not a protected First
Amendment activity and thus, cannot substantiate a retaliation claim. Id. at 555.
(“But it seems implausible that a threat to file a grievance would itself constitute a
First Amendment-protected grievance.”) (emphasis in original). Several months
later, in Fairley v. Andrews, 578 F.3d 518 (7th Cir. 2009), the Seventh Circuit
considered a related but distinguishable issue involving state actors who threaten
penalties in an effort to deter future speech.
In Fairley, the plaintiffs (prison guards) brought a § 1983 retaliation claim
alleging that they were bullied and threatened (by other guards) in order to
prevent the plaintiff’s from testifying in a prisoner’s civil rights lawsuit. Id. at 524.
The defendant guards argued, and the district court agreed, that the plaintiffs did
not experience retaliation because the threats preceded the plaintiffs’ testimony.
In overturning this portion of the district court’s decision, the Seventh Circuit
explained as follows:

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The Constitution prevents governmental actors from forbidding, or
penalizing, speech that is protected under the first amendment.
Penalties that follow speech are forbidden. This includes, but
certainly is not limited to, reactions to what has already been said.
E.g., Milwaukee Deputy Sheriff's Association v. Clarke, 574 F.3d 370
(7th Cir. 2009); Crue v. Aiken, 370 F.3d 668 (7th Cir. 2004); Ridpath
v. Marshall University, 447 F.3d 292, 319–20 (4th Cir. 2006). (Of
course, the sanction or threat must be serious enough to deter an
ordinary person from speaking. Bart v. Telford, 677 F.2d 622 (7th
Cir. 1982).) But threats of penalties also are forbidden. That's why it
can be misleading to speak of “retaliation” as the basis of a suit. The
word implies that threats don't matter, and the district court here
was misled.
Threatening penalties for future speech goes by the name “prior
restraint,” and a prior restraint is the quintessential first-amendment
violation. Nebraska Press Association v. Stuart, 427 U.S. 539, 559,
96 S.Ct. 2791, 49 L.Ed.2d 683 (1976) (judicial gag order);
Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 552-53, 95
S.Ct. 1239, 43 L.Ed.2d 448 (1975) (executive censorship). Indeed,
for a time it appeared that prior restraints were the only actions
forbidden by the first amendment. See Schenck v. United States, 249
U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470 (1919). Later cases have held
that penalties for completed speech also violate the Constitution, but
this development does not suggest that only post-speech penalties
now matter.

Id. at 525. In the instant case, at least part of Plaintiff’s retaliation claim is akin to
the prior restraint theory of recovery asserted by the plaintiff guards in Fairley.
That is, Plaintiff alleges he was threatened with being removed from his job and
being placed in segregation, among other things, in an effort to deter Plaintiff from
filing a lawsuit or complaining about what had happened to him. Considering the
Seventh Circuit’s decision in Fairley, the Court finds that Plaintiff has stated a
plausible retaliation claim that is sufficient at the screening stage against
Masterson, Snell, Ellis, and Zang. The Court notes, however, that in order to
maintain this claim, Plaintiff will have to meet the additional requirements
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(causation and proof of damages) discussed in Fairley. Plaintiff has failed to state
an independent retaliation claim against Graves and Lashbrook.

He does not

allege that Graves denied him medical care in retaliation for complaints made by
Plaintiff or to restrain him from making complaints, nor does he allege Lashbrook
personally acted in retaliation against him – only that he may have been aware of
acts of retaliation or prior restraint and failed to intervene (which is addressed in
Count 3).
Accordingly, Count 7 shall receive further review as to Masterson, Snell,
Ellis, and Zang. Lashbrook and Graves will be dismissed from this count for
failure to state a claim upon which relief may be granted.
Count 8 – Due Process
The Complaint states no Fourteenth Amendment claim against the
defendants for depriving Plaintiff of a protected liberty interest without due
process of law. Plaintiff has alleged several scenarios in which his due process
rights might have been violated, had they gone another way. For example, Plaintiff
claims that Zang and Masterson wrote investigative and disciplinary reports on
him that were false, in violation of his due process rights. However, in Hanrahan

v. Lane, 747 F.2d 1137, 1140–41 (7th Cir. 1984), the Seventh Circuit held that
the filing of false disciplinary charges by a correctional officer does not state a
Fourteenth Amendment claim when the accused inmate is given a subsequent
hearing on those charges in which the inmate is afforded the procedural
protections outlined in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963 (1974).

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The Seventh Circuit reasoned that prisoners have a right “to be free from
arbitrary actions of prison officials,”

Hanrahan, 747 F.2d at 1140, but

determined that the procedural protections outlined in Wolff provided the
appropriate protection against arbitrary actions taken by a correctional officer
such as issuing the inmate a fabricated conduct violation.
Plaintiff does not allege that he was denied the procedural protections
outlined in Wolff. Instead, he notes that the charges against him were dismissed.
Plaintiff has therefore not stated a due process claim against Zang and Masterson
for issuing him a false ticket.
Plaintiff also claims that his placement in segregation was in violation of his
due process rights. However, no due process protections are triggered by
placement in segregation unless a plaintiff has a protected liberty interest in
avoiding segregation.

A protected liberty interest arises when confinement in

segregation “impose[s] an ‘atypical and significant hardship on the inmate in
relation to the ordinary incidents of prison life.’” Hardaway v. Meyerhoff, 734 F.3d
740, 743 (7th Cir. 2013) (citing Sandin v. Conner, 515 U.S. 472, 484 (1995)).
Courts generally consider two factors when making this determination: “the
combined import of the duration of the segregative [sic] confinement and the
conditions endured.” Id. at 743 (citing Marion v. Columbia Corr. Inst., 559 F.3d
693, 697-98 (7th Cir. 2009)) (emphasis in original). If the length of confinement
in segregation is substantial and the conditions of confinement were unusually
harsh, a liberty interest may arise. Marion, 559 F.3d at 697-98, n.2.

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Plaintiff spent seven days or less in segregation awaiting the resolution of
the allegedly false tickets issued by Zang and Masterson. The Court does not find
that the length of this confinement in segregation supports a claim. Plaintiff has
also provided insufficient information regarding the conditions he faced while in
segregation. Plaintiff has therefore not stated a due process claim for his brief
time in segregation.
To the extent Plaintiff seeks to bring a due process claim for his being
removed from his job, the Court notes that the loss of a prison job does not
implicate the Due Process clause. “An inmate's expectation of keeping a certain
prison job does not amount to a property or liberty interest entitled to protection
under the due process clause.” Gibson v. McEvers, 631 F.2d 95, 98 (7th Cir.
1980); accord Garza v. Miller, 688 F.2d 480 (7th Cir. 1982) (prisoner does not
have a constitutional right to rehabilitative programs or employment in prison).
Absent any other plausible suggestion that Plaintiff was deprived of a
protected liberty interest without due process, the Court finds no basis for a
Fourteenth Amendment due process claim against the defendants. Accordingly,
Count 8 shall be dismissed without prejudice.
Count 9 – Intentional Infliction of Emotional Distress
Where a district court has original jurisdiction over a civil action such as a
§ 1983 claim, it also has supplemental jurisdiction over related state law claims
pursuant to 28 U.S.C. § 1367(a) so long as the state claims “derive from a
common nucleus of operative fact” with the original federal claims. Wisconsin v.

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Ho-Chunk Nation, 512 F.3d 921, 936 (7th Cir. 2008). “A loose factual connection
is generally sufficient.” Houskins v. Sheahan, 549 F.3d 480, 495 (7th Cir. 2008)
(citing Baer v. First Options of Chicago, Inc., 72 F.3d 1294, 1299 (7th Cir. 1995)).
The Court has original jurisdiction over this action. Because the federal and state
claims arise from the same facts, the district court also has supplemental
jurisdiction over the related state law claims in this and the below counts.
In order to state a claim for intentional infliction of emotional distress,
Plaintiff must demonstrate that the defendants intentionally or recklessly engaged
in “extreme and outrageous conduct” that resulted in severe emotional distress.

Somberger v. City of Knoxville, Ill., 434 F.3d 1006, 1030 (7th Cir. 2006); see
Lopez v. City of Chi., 464 F.3d 711, 720 (7th Cir. 2006). This tort has three
components: (1) the conduct involved must be truly extreme and outrageous; (2)
the actor must either intend that his conduct inflict severe emotional distress, or
know that there is at least a high probability that his conduct will cause severe
emotional distress; and (3) the conduct must in fact cause severe emotional
distress.

McGrath v. Fahey, 533 N.E.2d 806, 809 (Ill. 1988). The defendant's

conduct “must go beyond all bounds of decency and be considered intolerable in a
civilized community.”

Honaker v. Smith, 256 F.3d 477, 490 (7th Cir. 2001)

(citations omitted).
At this early stage, the Court finds that the allegations support a claim for
intentional infliction of emotional distress against Masterson, Snell, Ellis, Graves,
Lashbrook, and Zang, the defendants who were directly or indirectly involved in

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the alleged various acts of retaliation, prior restraint, and/or deliberate
indifference to medical needs.

Regardless of her involvement, Lashbrook may

also be separately liable under a theory of respondeat superior, as is discussed in
Count 11. Count 9 shall therefore receive further review against these defendants.
Count 10 – Conspiracy
The Court turns to Plaintiff's conspiracy claim against the defendants,
which he brings pursuant to 42 U.S.C. § 1985.

A § 1985 conspiracy claim

“cannot exist solely between members of the same entity.”

Payton v. Rush

Presbyterian-St. Luke's Med. Ctr., 184 F.3d 623, 632 (7th Cir. 1999). All of the
defendants are members of the same entity, i.e., the Illinois Department of
Corrections, and were working in the IDOC's interest. They cannot be sued for
conspiracy under § 1985. See id. See also Wright v. Ill. Dep't of Children and

Family Servs., 40 F.3d 1492, 1508 (7th Cir. 1994). Accordingly, the § 1985
conspiracy claim in Count 10 shall be dismissed with prejudice for failure to state
a claim upon which relief may be granted.
Civil conspiracy claims are cognizable under § 1983.

See Lewis v.

Washington, 300 F.3d 829, 831 (7th Cir. 2002) (recognizing conspiracy claim
under § 1983).

However, Plaintiff’s conclusion that some of the defendants’

actions amounted to an unlawful conspiracy is not supported 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

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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 alleged facts underpinning Plaintiff’s constitutional claims herein and
Plaintiff’s conclusion that defendants “have conversed ‘extensively’” about the
March 28, 2017 incident simply because Ellis was aware of it do not establish a
conspiracy. (Doc. 1, p. 15). The Complaint contains no factual support for the
idea that the defendants had a meeting of the minds to harm Plaintiff, despite
Plaintiff’s conclusory statements that such a meeting of the minds existed.
Instead, Plaintiff’s claim that the defendants engaged in a conspiracy to violate his
rights rests solely on his own conclusions. The conclusory statements that the
defendants’ “committed overt acts” and were “otherwise willful participant[s]” in a
conspiracy to violate Plaintiff’s rights are examples of such conclusions. (Doc. 1,
p. 33). Conclusory legal statements such as Plaintiff sets forth in his Complaint
are insufficient to state a claim that survives review under § 1915A. See Brooks v.

Ross, 578 F.3d 574, 581 (7th Cir. 2009).

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For these reasons, Count 10 shall be dismissed without prejudice for
failure to state a claim upon which relief may be granted.
Count 11 – Respondeat Superior
Plaintiff seeks to assert a separate claim against Lashbrook under a theory
of respondeat superior for the actions of the defendants underlying the other
counts in this suit.

The doctrine of respondeat superior is not applicable to

Section 1983 claims. Illinois, however, recognizes the doctrine. See Adames v.

Sheahan, 909 N.E.2d 742, 755 (Ill. 2009); see also Doe v. City of Chicago, 360
F.3d 667, 670 (7th Cir. 2004). Lashbrook will therefore not be dismissed from
any state law claims allowed to proceed in this action based, at least in part, on
Plaintiff’s respondeat superior claim. Because the theory of respondeat superior
will act to implicate Lashbrook in any relevant state law counts, a separate count
for respondeat superior against Lashbrook would be superfluous. Count 11 will
therefore be dismissed.
Count 12 - Indemnification
To the extent Plaintiff seeks to enforce the State's obligation under Illinois
law to indemnify its employees for any judgments entered against them, the state
indemnification claim shall proceed. The Eleventh Amendment immunizes the
State, its agencies, and its officials acting in their official capacities from a suit in
federal court for money damages. Will v. Mich. Dep't of State Police, 491 U.S. 58,
71 (1989). See also Wynn v. Southward, 251 F.3d 588, 592 (7th Cir. 2001);

Billman v. Ind. Dep't of Corr., 56 F.3d 785, 788 (7th Cir. 1995); Hughes v. Joliet

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Corr. Ctr., 931 F.2d 425, 427 (7th Cir. 1991); Santiago v. Lane, 894 F.2d 219,
220 n.3 (7th Cir. 1990). However, suits against state officials in their individual
capacities are permissible.

Taylor v. Wexford Health Sources, Inc., No. 15 C

05190, 2016 WL 3227310 (N.D. Ill. 2016) (citing Kroll v. Bd. of Trs. of Univ. of

Ill., 934 F.2d 904, 907 (7th Cir. 1991); Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 99 (1984)). Further, the “[S]tate's decision to indemnify
its employees does not transform a suit against individual defendants into a suit
against the sovereign.” Id. (citing Benning v. Bd. of Regents of Regency Univs.,
928 F.2d 775, 779 (7th Cir. 1991)).
Under such circumstances, the doctrine of sovereign immunity does not bar
Plaintiff's claims. Id. (citing Wright v. Carter, No. 14 C 09109, 2015 WL 4978688,
at *6 (N.D. Ill. Aug. 20, 2015) (refusing to find that sovereign immunity barred
indemnification claim where “Plaintiff merely explain[ed] ... that the state is
required by its own law to indemnify employees such as the IDOC defendants for
any judgments that may be entered against them” and where it was “clear that the
individual defendants will be the ones directly liable for any money judgment”)).
At this early stage, the indemnification claim against IDOC shall proceed.
Additional Defendants
The Supreme Court has held that “neither a State nor its officials acting in
their official capacities are ‘persons’ under § 1983.” Will v. Mich. Dep’t of State

Police, 491 U.S. 58, 71 (1989). See also Wynn v. Southward, 251 F.3d 588, 592
(7th Cir. 2001) (Eleventh Amendment bars suits against states in federal court for

30

money damages); Billman v. Ind. Dep’t of Corr., 56 F.3d 785, 788 (7th Cir. 1995)
(state Department of Corrections is immune from suit by virtue of Eleventh
Amendment).

Menard Correctional Center, which is a division of the Illinois

Department of Corrections, is therefore not a “person” within the meaning of the
Civil Rights Act, and is not subject to a § 1983 suit. See Will, 491 U.S. at 71.
Because of this, Menard Correctional Center will be dismissed from this
action with prejudice.
Pending Motions
Plaintiff submitted an Order to Show Cause for a Preliminary Injunction
that was filed in CM-ECF as a Motion for Preliminary Injunction (Doc. 5). This
Motion is hereby REFERRED to a United States Magistrate Judge for a decision.
Plaintiff has filed a Motion to Order Facility to Give Plaintiff 6 Month Ledger
Before Deadline (Doc. 4), which is hereby DENIED as moot. This Court received
Plaintiff’s trust fund account statement along with his Motion for Leave to Proceed

In Forma Pauperis (Doc. 3), and his motion was granted on September 21, 2017.
(Doc. 7).
Disposition
IT IS HEREBY ORDERED that COUNTS 1, 2, 4, 5, 8, and 10 are
DISMISSED without prejudice for failure to state a claim upon which relief may
be granted, and COUNT 11 is dismissed for being duplicative.
IT IS FURTHER ORDERED that COUNT 3 shall PROCEED against
LASHBROOK, COUNT 6 shall PROCEED against LASHBROOK and GRAVES

31

and is DISMISSED without prejudice as against all other defendants for failure to
state a claim upon which relief may be granted, COUNT 7 shall PROCEED
against MASTERSON, SNELL, ELLIS, and ZANG and is DISMISSED without
prejudice for failure to state a claim upon which relief may be granted as against
all other defendants, COUNT 9 shall PROCEED against MASTERSON, SNELL,
ELLIS, ZANG, LASHBROOK, and GRAVES, and COUNT 12 shall PROCEED
against the ILLINOIS DEPARTMENT OF CORRECTIONS.
IT IS FURTHER ORDERED that MENARD CORRECTIONAL CENTER is
DISMISSED from this action with prejudice for the reasons stated above.
IT IS FURTHER ORDERED that as to COUNTS 3, 6, 7, 9, and 12, the
Clerk of Court shall prepare for MASTERSON, SNELL, ELLIS, ZANG,
LASHBROOK, GRAVES, and the ILLINOIS DEPARTMENT OF CORRECTIONS:
(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
defendants’ place of employment as identified by Plaintiff. If one of the defendants
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 the defendant pay the full costs of formal service, to the extent authorized
by the Federal Rules of Civil Procedure.
With respect to a defendant who no longer can be found at the work
32

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 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 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.
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.

Further, this entire

matter shall be REFERRED to a 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

33

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. § 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.

Digitally signed by
Judge David R.
Herndon
Date: 2017.09.28
12:11:05 -05'00'
United States District Judge

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