Mason v. Unknown Party et al

Filing 1

MEMORANDUM AND ORDER severing case number 17-867-DRH. Signed by Judge David R. Herndon on 9/21/2017. (tjk)

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

MICKEY DEANGELO MASON,
#R04326,
Plaintiff,
v.

Case No: 3:17-cv-00867-DRH

WILLIAM A. SPILLER, ROBIN ROWOLD,
INTERNAL AFFAIRS, KELLY PIERCE,
MRS. WOODS, KIMBERLY BUTLER,
LT. SMOLEK, ORANGE CRUSH,
and UNKNOWN PARTY,
Defendants.
MEMORANDUM AND ORDER
HERNDON, District Judge:
This matter is now before the Court for preliminary review of the Amended
Complaint filed by Plaintiff Mickey Mason.

(Doc. 6).

Plaintiff is currently

incarcerated at Menard Correctional Center (“Menard”). He brings this civil rights
action pursuant to 42 U.S.C. § 1983 in order to address numerous deprivations
of his constitutional rights at Menard. Id.
Plaintiff filed his original Complaint on August 15, 2017. (Doc. 1). Before
the Court screened the Complaint pursuant to 28 U.S.C. § 1915A, Plaintiff filed
an Amended Complaint on August 25, 2017. At this early stage in proceedings, a
party may amend a complaint freely as a matter of course. See FED. R. CIV. P.
15(a)(1). An amended complaint supersedes and replaces the original, rendering

the original void. See Flannery v. Recording Indus. Ass’n of Am., 354 F.3d 632,
638 n. 1 (7th Cir. 2004).
Plaintiff is granted leave to amend.

The original Complaint (Doc. 1) is

VOID, and it is now SUPERSEDED and REPLACED by the Amended Complaint
(Doc. 6). The Amended Complaint is subject to preliminary review pursuant to
28 U.S.C. § 1915A, which provides:
(a) Screening – The court shall review, before docketing, if feasible or, in
any event, as soon as practicable after docketing, a complaint in a civil
action in which a prisoner seeks redress from a governmental entity or
officer or employee of a governmental entity.
(b) Grounds for Dismissal – On review, the court shall identify cognizable
claims or dismiss the complaint, or any portion of the complaint, if the
complaint–
(1) is frivolous, malicious, or fails to state a claim on which relief may
be granted; or
(2) seeks monetary relief from a defendant who is immune from such
relief.
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).

As part of the screening process, the Court will consider whether any
parties or claims are improperly joined in this action. See FED. R. CIV. P. 21;
George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).
Amended Complaint
Soon after Plaintiff transferred into Menard’s East Cell House on
February 3, 2016, he allegedly notified several prison officials that “they are now
liable’’ for any future litigation that results from his or any other inmate’s
placement in the odd-numbered galleries. (Doc. 6, p. 5). These officials included
Warden Butler, Lieutenant Smolek, and Counselor Wood. Id. Plaintiff put them
on notice because he was aware that the “Statewide Tactical Unit/Orange Crush
always abuse[s], harass[es], and knowingly performs acts” that are forbidden. Id.
On April 1, 2016, Orange Crush Officers allegedly forced Plaintiff “on
another mans (sic) butt with his private area.”

(Doc. 6, p. 5). When Plaintiff

attempted to distance himself from the inmate, he was ordered to “keep the line
tight.” Id. An Orange Crush Officer then “physically assaulted” him. (Doc. 6, p.
6). Plaintiff does not describe the assault. Id. However, he says that his hands
were cuffed behind his back at the time, and he posed no threat to anyone. Id.
He also describes injuries that he received during the assault. Id.
As Plaintiff made his way up the stairs, William Spiller met him dressed in
orange crush clothing and tactical gear. (Doc. 6, p. 6). Spiller choked Plaintiff
“until he turned red.” Id. He then shoved Plaintiff’s head down forcefully. Id.
Multiple bruises were already visible at the time. Id.

Plaintiff immediately requested medical treatment for head lacerations, a
sore neck, and a sore Adam’s apple. (Doc. 6, p. 6). He continued to do so for the
next three days. Id. He was eventually called to the health care unit (“HCU”) on
April 5, 2016.

Id.

Officer Ward1 interviewed him.

Id.

Plaintiff provided a

statement and again requested medical treatment, but Officer Ward ignored his
request. Id.
Following the interview on April 5, 2016, Nurse Amy Lang2 asked Plaintiff
if he wanted to complete a “rape kit.” (Doc. 6, p. 7). She asked Plaintiff this
question in the presence of other inmates and staff, who laughed at the question.
Id. When Plaintiff declined the offer, Nurse Lang refused to treat his injuries. Id.
As a result, Plaintiff continued to suffer from pain in his head and neck for
another a week. Id.
Plaintiff wrote several grievances to complain about the incident involving
Spiller. (Doc. 6, p. 7). He directed approximately five grievances to Counselor
Wood, Counselor Rowold, Kelly Pierce, and Warden Butler, among others, but
received no response.

(Doc. 6, pp. 7-9).

Plaintiff eventually sent a grievance

directly to the Administrative Review Board (“ARB”) on July 17, 2016. Id.
also sent two grievances to the Illinois State Police.

Id.

He

Still, he received no

response. Id.
1

This individual is not named as a defendant in the case caption or list of defendants, so all
claims against Officer Ward are considered dismissed without prejudice from this action. See
FED. R. CIV. P. 10(a) (noting that the title of the complaint “must name all the parties”); Myles v.
United States, 416 F.3d 551, 551-52 (7th Cir. 2005) (holding that to be properly considered a
party, a defendant must be “specif[ied] in the caption”).
2

This individual is also not named as a defendant, so all claims against Nurse Lang are
considered dismissed without prejudice as well. See id.

In mid-May, Plaintiff began to realize that Menard’s Mailroom Staff and
Internal Affairs were interfering with his grievances and mail. (Doc. 6, pp. 8, 10).
He noticed long delays when sending and receiving mail. Id. When he did receive
his mail, he noticed that it was “tampered with” and already opened. Id. This
includes incoming and outgoing privileged legal mail dated May 13, July 4,
September 22, September 23, September 30, October 6, November 8, November
9, November 28, November 30, and December 1, 2016.

(Doc. 6, pp. 8-9).

Mailroom staff also opened and read a letter he received from the Supreme Court
on June 19, 2017, and a certified letter he received from the Innocence Project on
June 23, 2017. (Doc. 6, p. 11). On one occasion, he received a piece of certified
legal mail that included his forged signature and was already opened. (Doc. 6, p.
8). He also began receiving money voucher receipts from Mailroom Staff with
drawings of a middle finger on the back, including receipts dated August 1,
September 13, September 19, and September 20, 2016. (Doc. 6, p. 10).
On August 3, 2017, several Orange Crush Officers entered his cell and
removed personal property that included legal materials, legal documents, trial
transcripts, discovery materials, and other personal property. (Doc. 1, pp. 1213). Plaintiff asked Sandie Walker3 for permission to speak with a lieutenant, but
permission was denied. Id. He wrote an emergency grievance to the warden, but
received no response. Id. He claims that the confiscation of his legal materials
prevented him from “moving along” with an appeal. Id.

3

This individual is not named as a defendant, and all claims against Walker are considered
dismissed without prejudice. Id.

He claims that the Orange Crush Officers, Internal Affairs, Mailroom Staff,
Spiller, Pierce, Wood, Smolek, and Butler conspired to retaliate against Plaintiff
by exercising his Fourteenth Amendment rights. (Doc. 6, pp. 11-12).
On August 10, 2017, Plaintiff was moved to the North-2 Cell House and
placed in a one-person cell with a cellmate. (Doc. 6, p. 12). The cell was too
small for two inmates. (Doc. 6, p. 13). Plaintiff had to keep his television on the
bed and sleep next to it. Id. There was no room to store his boxes or stretch and
he began experiencing pain due to a lack of exercise. Id. According to Plaintiff,
this cell transfer not only violated a judge’s order “to clear the cells” but
constituted retaliation against Plaintiff. (Doc. 6, p. 12).
Plaintiff also claims that he has been denied medical and mental health
treatment at Menard since April 1, 2016. (Doc. 6, p. 10). He offers no other
allegations in support of this claim and names no defendants in connection with
it. Id.
Plaintiff seeks monetary damages. (Doc. 6, p. 14). He also seeks injunctive
relief, including action taken to train officers on the use of force, hold them
accountable, and suspend them without pay for misconduct. Id.
Discussion
To facilitate the orderly management of future proceedings in this case, and
in accordance with the objectives of Federal Rules of Civil Procedure 8(e) and
10(b), the Court deems it appropriate to re-characterize the claims in the
Amended Complaint as follows:

Count 1 -

Claim against Defendants Wood, Smolek, and Butler, based on
Plaintiff’s warning that the defendants would be liable for
anything that occurred in the odd-numbered galleries of
Menard’s East Cell House on February 3, 2016.

Count 2 -

Eighth Amendment deliberate indifference claim against the
Orange Crush Officers and Spiller for using excessive force
against Plaintiff on April 1, 2016.

Count 3 -

Fourteenth Amendment due process claim against Defendants
Wood, Pierce, Rowold, and Butler for failing to respond to
Plaintiff’s grievances in 2016-17.

Count 4 -

First and/or Fourteenth Amendment denial of access to courts
claim against the Mailroom Staff and Internal Affairs for
regularly interfering with Plaintiff’s personal and legal mail in
2016-17.

Count 5 -

First and/or Fourteenth Amendment denial of access to courts
claim against the Orange Crush Officers who searched
Plaintiff’s cell and confiscated his personal property, including
his legal mail, documents, and materials, on August 3, 2017.

Count 6 -

Eighth Amendment deliberate indifference claim against
unnamed defendants who transferred Plaintiff into a one-man
cell with a cellmate on August 10, 2017.

Count 7 -

Eighth Amendment deliberate indifference to medical needs
claim against unnamed defendants who have denied Plaintiff
access to medical treatment since April 1, 2016.

Count 8 -

Claim against Defendants for conspiring to retaliate against
Plaintiff for exercising his constitutional rights.

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 claims that are mentioned in the Amended Complaint or exhibits but
omitted from the above list are considered dismissed without prejudice from
this action.
Dismissal of Counts 1, 3, 6, 7, and 8
To state a claim under § 1983, a plaintiff must establish that he had a
constitutionally protected right, he was deprived of that right in violation of the
Constitution, and the deprivation was caused by a defendant who acted under
color of state law.

42 U.S.C. § 1983.

McNabola v. Chicago Transit Auth.,

10 F.3d 501, 513 (7th Cir. 1993); Patrick v. Jasper Cnty., 901 F.2d 561, 565
(7th Cir. 1990). A government official may not be held liable under § 1983 on a
theory of respondeat superior, based on the unconstitutional conduct of a
subordinate.

Ashcroft v. Iqbal, 556 US. 662, 676 (2009).

Liability instead

requires personal involvement in or personal responsibility for the deprivation of
a constitutional right. Knight v. Wiseman, 590 F.3d 458, 462-63 (7th Cir. 2009)
(citation omitted); Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995). To be
personally responsible, an official “must know about the conduct and facilitate it,
approve it, condone it, or turn a blind eye” to it. Gentry, 65 F.3d at 561. Counts
1, 3, 6, 7, and 8 do not survive preliminary review under this standard.
Counts 1 and 8 rely on insufficient allegations of each defendant’s personal
involvement in a constitutional deprivation. Rule 8 of the Federal Rules of Civil
Procedure requires a “short and plain statement of the claim showing that the
pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). Although Rule 8 does not

require “detailed factual allegations,” it does call for sufficient factual allegations
that, accepted as true, “state a claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 556. This principle does not apply when a plaintiff offers
nothing more than threadbare recitals of the elements of a cause of action
supported only by conclusory statements.

In Count 1, Plaintiff asserts, in

conclusory fashion only, that Defendants Wood, Smolek, and Butler are liable for
all events that transpired after Plaintiff warned them that they would be liable on
February 3, 2016. In Count 8, he alleges that Defendants Orange Crush Officers,
Mailroom Staff, Internal Affairs, Spiller, Pierce, Wood Smolek, and Butler are
liable for conspiring to retaliate against him for exercising his constitutional
rights. In support of both claims, Plaintiff offers nothing more. The Amended
Complaint therefore articulates no claim for relief in Counts 1 and 8 against
Defendants. Both of these claims shall be dismissed without prejudice.
Counts 6 and 7 also fail to state any claim for relief. Plaintiff names no
defendants in connection with either claim. He has therefore failed to establish
that any defendants were personally responsible for the deprivation of his Eighth
Amendment rights. He also offers no factual allegations in support of Count 7,
relying instead on a single allegation that his undisclosed medical needs have not
been addressed since April 2016.

Both claims are undeveloped and shall be

dismissed without prejudice from this action.

Finally, Count 3 shall also be dismissed for failure to state any claim for
relief.

Plaintiff alleges that Defendants Woods, Pierce, Rowold, and Butler all

failed to respond to his grievances in 2016-17.

This does not give rise to a

Fourteenth Amendment due process claim. Prison grievance procedures are not
constitutionally mandated and thus do not implicate the Due Process Clause per
se. As such, the alleged mishandling of grievances “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 at 609;
Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996).

Count 3 shall

therefore be dismissed with prejudice against Defendants Wood, Pierce, Rowold,
and Butler.
Severance of Counts 4 and 5
What remains in this action are three distinct sets of claims against
different defendants: (1) Count 2 against Orange Crush Officers and Spiller for
using excessive force against Plaintiff on April 1, 2016; (2) Count 4 against the
Mailroom Staff and Internal Affairs for regularly interfering with Plaintiff’s
personal and legal mail in 2016-17; and (3) Count 5 against the Orange Crush
Officers who conducted a shakedown of Plaintiff’s cell and confiscated his
personal and legal property on August 3, 2017. These three sets of claims cannot
proceed together in the same action.

In George v. Smith, 507 F.3d 605 (7th Cir. 2007), the Seventh Circuit
emphasized that unrelated claims against different defendants belong in separate
lawsuits, “not only to prevent the sort of morass” produced by multi-claim, multidefendant suits, “but also to ensure that prisoners pay the required filing fees”
under the Prison Litigation Reform Act.

George, 507 F.3d at 607 (citing

28 U.S.C. § 1915(b)(g)); Wheeler v. Talbot, -- F. App’x --, 2017 WL 2417889 at *1
(7th Cir. June 5, 2017) (failing to sever mis-joined claims prejudices the United
States Treasury); Owens v. Godinez, 860 F.3d 434, 436 (7th Cir. 2017). Claims
against different defendants, which do not arise from a single transaction or
occurrence (or a series of related transactions/occurrences), and do not share a
common question of law or fact, may not be joined in the same lawsuit. See FED.
R. CIV. P. 20(a)(2); Owens, 860 at 436.

A prisoner, like Plaintiff, who files a

“buckshot complaint” that includes multiple unrelated claims against different
individuals should not be allowed to avoid “risking multiple strikes for what
should have been several different lawsuits.” Turley v. Gaetz, 625 F.3d 1005,
1011 (7th Cir. 2010). The Court has broad discretion as to whether to sever
claims pursuant to Federal Rule of Civil Procedure 21 or to dismiss improperly
joined defendants.

See Owens v. Hinsely, 635 F.3d at 952; Rice v. Sunrise

Express, Inc., 209 F.3d 1008, 1016 (7th Cir. 2000).

Plaintiff’s three groups of claims involve unique defendants, and none of
the claims share a common nucleus of operative facts. For these reasons, the
Court shall sever Plaintiff’s remaining claims into two additional cases and assess
another filing fee in each newly severed case.
Consistent with George and Rule 21, the Court shall sever Count 4 into a
new action against Menard’s Mailroom Staff and Internal Affairs for regularly
interfering with Plaintiff’s mail in 2016-17. Additionally, the Court shall sever
Count 5 into a separate action against the Orange Crush Officers who conducted a
shakedown of Plaintiff’s cell on August 3, 2017. Each newly severed case shall be
assigned a new case number and assessed a filing fee. The Court will separately
issue a merits review order in each newly severed case, and Plaintiff will be
provided with a copy of the same once the screening order is entered.
Count 2 against the Orange Crush Officers and Spiller shall remain in this
action. A separate order shall be issued in this case to review the merits of both
claims. Plaintiff shall be provided with a copy of the merits review order as soon
as it is entered. No service will be ordered on any defendant at this time.
Pending Motions
Plaintiff’s Motion for Leave to Proceed in forma pauperis (Doc. 2) and
Motion to Appoint Counsel (Doc. 3) shall be addressed in a separate court order.
Plaintiff’s Motion for Court Order (Doc. 5) is DENIED as MOOT in this
case. The motion shall be decided in the newly-severed case addressing Count 5.

Plaintiff’s Motion to Address this Honorable Court (Doc. 7) is also DENIED
as MOOT. This motion addresses Menard’s alleged failure to transmit a complete
copy of the original Complaint to the Court for filing.

However, the original

Complaint is void; it is superseded by the Amended Complaint.
Disposition
IT IS HEREBY ORDERED that Plaintiff’s original Complaint (Doc. 1) is
VOID. It is SUPERSEDED and REPLACED by the Amended Complaint (Doc. 6).
IT IS ORDERED that COUNT 1 is DISMISSED without prejudice against
Defendants WOOD, SMOLEK, and BUTLER; COUNT 3 is DISMISSED with
prejudice against Defendants WOOD, PIERCE, ROWOLD, and BUTLER; and
COUNTS 6, 7, and 8 are DISMISSED without prejudice against all of the
defendants. All of these claims are dismissed for failure to state a claim upon
which relief may be granted.
IT IS HEREBY ORDERED that COUNTS 4 and 5, which are unrelated to
COUNT 2, are severed into two new cases, as follows:
SEVERED CASE 1: COUNT 4 is severed into a new case against
Defendants

UNKNOWN

PARTY

(MENARD’S

MAILROOM

STAFF)

and

INTERNAL AFFAIRS and shall be captioned: MICKEY DEANGELO MASON,
Plaintiff

vs.

Defendants.

MENARD

MAILROOM

STAFF

and

INTERNAL

AFFAIRS,

SEVERED CASE 2: COUNT 5 is severed into a new case against
Defendants ORANGE CRUSH OFFICERS and shall be captioned: MICKEY
DEANGELO MASON, Plaintiff vs. ORANGE CRUSH OFFICERS, Defendants.
The claims in each newly-severed case shall be subject to a merits review
pursuant to 28 U.S.C. § 1915A, after the new case number and judge assignment
is made.

In each new case in this Court, the Clerk is DIRECTED to file the

following documents:
1) This Memorandum and Order
2) Amended Complaint (Doc. 6)
3) Motion for Leave to Proceed in forma pauperis (Doc. 2)
4) Motion to Appoint Counsel (Doc. 3)
5) Motion for Court Order (Doc. 5) – Severed Case 2 Only
Plaintiff will be responsible for an additional $400.004 filing fee in each newly
severed case. No service shall be ordered on the defendant in the severed case
until the § 1915A review is completed.

Each case is also subject to further

severance, should the Court determine, as the case proceeds, that Plaintiff has
improperly joined parties and/or claims in the newly severed case.

4

Effective May 1, 2013, the filing fee for a civil case increased from $350.00 to $400.00, by the
addition of a new $50.00 administrative fee for filing a civil action, suit, or proceeding in a district
court. See Judicial Conference Schedule of Fees - District Court Miscellaneous Fee Schedule, 28
U.S.C. § 1914, No. 14. A litigant who is granted leave to proceed in forma pauperis, however, is
exempt from paying the new $50.00 fee.

IT IS ORDERED that Defendants MRS. WOOD, LT. SMOLEK, KELLY
PIERCE, ROBIN ROWOLD, KIMBERLY BUTLER (individual capacity only),
UNKNOWN

PARTY

(MENARD’S

MAILROOM

STAFF),

and

INTERNAL

AFFAIRS are TERMINATED as parties in this action.
IT IS FURTHER ORDERED that the only claims remaining in this
action is COUNT 2 against Defendants SPILLER and ORANGE CRUSH
OFFICERS. Warden Butler (official capacity only) shall also remain named in
this action for purposes of carrying out any injunctive relief that is ordered herein.
This case shall now be captioned: MICKEY DEANGELO MASON, Plaintiff vs.
WILLIAM SPILLER, ORANGE CRUSH OFFICERS, and KIMBERLY BUTLER
(official capacity), Defendants.
IT IS SO ORDERED.
Signed this 21st day of September, 2017.

Judge Herndon
2017.09.21
17:36:29 -05'00'
UNITED STATES DISTRICT JUDGE