Patterson v. Johnson et al

Filing 13

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. IT IS FURTHER ORDERED that, pursuant to Federal Rule of Civil Procedure 20(a)(2), Plaintiff's due process and retaliation claims in COUNTS 4 and 6, and the retaliation and Eighth Amendment claims in COUNTS 9 and 10, are SEVERED into 2 new cases. Signed by Chief Judge Michael J. Reagan on 12/5/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
RICKY PATTERSON, # B-79037,
Plaintiff,
vs.
D. JOHNSON,
WARDEN LAMB,
M. McCARTHY,
SGT. CASBURN,
L. McCARTHY,
STIBBRR,
HENTON,
E. COOPER,
GOODRUM,
BUCKLES,
SUMMER,
C/O GIVENS,
J. BALDWIN,
DAVE WHITE,
and COUNSELOR RAY,
Defendants.

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Case No. 17-cv-1067-MJR

MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
Plaintiff is currently incarcerated at Hill Correctional Center (“Hill”). He brought this
pro se civil rights action pursuant to 42 U.S.C. § 1983 while he was confined at Lawrence
Correctional Center (“Lawrence”), where his claims arose. Plaintiff raises a number of claims,
including improper opening and confiscation of his legal mail, the issuance of false disciplinary
tickets against him, and retaliation including repeated threats of serious bodily harm and sexual
assault. This case is now before the Court for a preliminary review of the Complaint pursuant to
28 U.S.C. § 1915A.

1

Under § 1915A, the Court is required to screen prisoner complaints to filter out nonmeritorious claims. See 28 U.S.C. § 1915A(a). The Court must dismiss any portion of the
Complaint that is legally frivolous, malicious, fails to state a claim upon which relief may be
granted, or asks for money damages from a defendant who by law is immune from such relief.
28 U.S.C. § 1915A(b).
An action or claim is frivolous if “it lacks an arguable basis either in law or in fact.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989). Frivolousness is an objective standard that refers
to a claim that “no reasonable person could suppose to have any merit.” Lee v. Clinton, 209 F.3d
1025, 1026-27 (7th Cir. 2000). An action fails to state a claim upon which relief can be granted
if it does not plead “enough facts to state a claim to relief that is plausible on its face.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The claim of entitlement to relief must
cross “the line between possibility and plausibility.” Id. at 557. Conversely, a complaint is
plausible on its face “when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). Although the Court is obligated to accept factual allegations as true,
see Smith v. Peters, 631 F.3d 418, 419 (7th Cir. 2011), some factual allegations may be so
sketchy or implausible that they fail to provide sufficient notice of a plaintiff’s claim. Brooks v.
Ross, 578 F.3d 574, 581 (7th Cir. 2009). Additionally, Courts “should not accept as adequate
abstract recitations of the elements of a cause of action or conclusory legal statements.” Id. At
the same time, however, the factual allegations of a pro se complaint are to be liberally
construed. See Arnett v. Webster, 658 F.3d 742, 751 (7th Cir. 2011); Rodriguez v. Plymouth
Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).
Applying these standards, the Court finds that some of Plaintiff’s claims survive

2

threshold review under § 1915A. Further, some of the surviving claims are not properly joined
in the same action, and shall be severed into 2 new cases.
The Complaint
Plaintiff’s statement of claim spans 25 pages, and often does not present the events
underlying his claims in chronological order. (Doc. 1, pp. 9-33). Plaintiff also includes 62 pages
of exhibits. (Doc. 1-1).
According to Plaintiff, when he was transferred to Lawrence on November 4, 2016, he
had an ongoing criminal appeal as well as a pending civil legal matter. Most of his personal
property consisted of legal documents, prompting correctional officers to comment to each other
that Plaintiff might sue them. (Doc. 1, p. 9). Officers would make remarks and question
Plaintiff after he received phone calls from attorneys or judges, at times refusing to let Plaintiff
return to his housing area until he disclosed who he had spoken to. Plaintiff wrote grievances
over this behavior, but his complaints were not answered. Id. In late December 2016, Plaintiff’s
lawyer had to call the prison so that Plaintiff could access a notary for documents he needed to
sign and return. When Plaintiff placed the documents in the mail to his attorney, the envelope
was never delivered, which led to more phone calls and additional court dates. (Doc. 1, p. 10).
Against that backdrop, in the first week of January, Plaintiff received an attorney call
followed by a judge call the next day. After the phone call with the judge, C/O Buckles brought
an opened letter from Plaintiff’s attorney to his cell. Plaintiff asked Buckles why he had opened
the envelope; he responded that “we gone [sic] make sure you don’t sue nobody here.” (Doc. 1,
p. 10).
A few days later, Plaintiff received a disciplinary ticket written by Buckles on January
10, 2017, charging him with unauthorized movement for allegedly being in the dayroom at the

3

wrong time. Id. Plaintiff was able to get the ticket expunged because he had documentation that
he was in the commissary at the time Buckles claimed he was in the dayroom. Plaintiff asserts
that Buckles wrote the false ticket because he was unable to provoke Plaintiff into a physical
reaction by intimidating him during and after the mail-opening incident. (Doc. 1, p. 10).
On January 12, 2017, C/O Summer delivered a legal letter from the “Fourth District
Appellate Court” to Plaintiff’s cell. 1 Id. While Plaintiff watched, Summer went through the
opened envelope and removed a “key part” of the documents as well as the stamped return
envelope which Plaintiff’s lawyer instructed him to use to return the signed receipt she had
enclosed. (Doc. 1, pp. 9-10). Plaintiff protested, but Summer and another officer told him he
was not allowed to have the envelope. Plaintiff asked to speak to a Lieutenant about the matter.
Lieutenant Stibbrr 2 reiterated that Plaintiff could not have the envelope. (Doc. 1, p. 11).
Showing Stibbrr the letter, Plaintiff tried to explain that he needed the transcripts rather than the
envelope, but Stibbrr began yelling and waving his arms in the air, then stepped forward, running
into Plaintiff in an apparent attempt to get him to move. Plaintiff turned and started back to his
cell, but Stibbrr grabbed Plaintiff’s arm. Stibbrr and another officer took Plaintiff to segregation.
Later that day (January 12, 2017), Stibbrr wrote a ticket claiming that Plaintiff squeezed his
biceps, preventing him from moving his arms, and then shoved him. (Doc. 1, p. 10). Plaintiff
denies this, noting that he was holding the letter in one hand and a pen in the other during the
verbal confrontation with Stibbrr, and never squeezed the officer’s biceps or held his arms down.
The incident would have been captured on surveillance video. (Doc. 1, pp. 10-11).
Lt. Henton and C/O Cooper served as the hearing panel for Stibbrr’s disciplinary ticket
1

While Plaintiff states the letter came from the Appellate Court, his attached exhibit reveals that the letter
was actually from Plaintiff’s appellate attorney at the Office of the State Appellate Defender, Fourth
District, and contained court transcripts and a receipt for Plaintiff to sign and return. (Doc. 1-1, p. 2).
2
Plaintiff’s exhibits include a summary report of disciplinary proceedings relating to this incident, which
reflects that the officer involved is named “Steber.” (Doc. 1-1, p. 5).

4

against Plaintiff for assault and intimidation/threat. (Doc. 1, pp. 11-12; Doc. 1-1, pp. 5-6; 25).
Plaintiff complains that the composition of the hearing panel violated the Illinois Administrative
Code because neither officer represented the counseling staff, and this meant that the panel was
not impartial. (Doc. 1, pp. 11-13). He also notes that Stibbrr, who wrote the disciplinary report,
is the superior officer of Henton and Cooper, indicating that they would be unlikely to question
Stibbrr’s version of events. (Doc. 1, p. 16).
After Plaintiff was served with the disciplinary report, on January 13, 2017, he requested
Givens (hearing officer) to review the surveillance video, which would prove that Plaintiff never
touched or grabbed Stibbrr. (Doc. 1, p. 14). Plaintiff also gave a grievance to Counselor Ray
and submitted a written statement to the adjustment committee – both requesting that the
surveillance video be preserved, reviewed by the investigating officer, and presented to the
adjustment committee.

However, Givens (who had a mandatory duty to inspect physical

evidence) failed to review the video or report on it to the hearing committee. (Doc. 1, p. 15).
Henton and Cooper found Plaintiff guilty on January 16, 2017, without reviewing the
surveillance video. They based their finding solely on Stibbrr’s report. (Doc. 1, pp. 15-17).
Plaintiff raises due process claims based on these events. Plaintiff was punished with 3 months
in segregation, as well as 3 months of C-grade, commissary restriction, and 6 months of
restriction on contact visits. (Doc. 1, pp. 13, 15; Doc. 1-1, pp. 5-6, 25). He also states that he
lost 3 months of good conduct credits, however, this is not reflected in the final summary report
Plaintiff included with the Complaint. (Doc. 1-1, pp. 5-6, 25). Plaintiff further was labeled a
“staff assaulter,” which caused him to be targeted by officers for harassment and threats.
Plaintiff filed grievances over the composition of the hearing panel and their handling of
the disciplinary procedure. Stibbr tore the original grievances in half and tossed them into

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Plaintiff’s segregation cell, taunting him.

(Doc. 1, p. 13).

Plaintiff mailed copies of his

grievances to his family to send to the Administrative Review Board (“ARB”). White (of the
ARB) “rubber-stamped” the denial of the grievances, as did Warden Lamb and IDOC Director
Baldwin. (Doc. 1, pp. 12, 17). Plaintiff complains that the grievance process at Lawrence is
non-functional, as Counselor Ray allows grievances to end up in the hands of staff and fails to
answer them, and Lamb, White, Smith3 (of the ARB), and Baldwin fail to remedy problems that
are brought to their attention. (Doc. 1, pp. 14, 17).
Plaintiff asserts that he has been subjected to retaliation by numerous Lawrence officials
for filing grievances and engaging in litigation, and because he was wrongly classified as a “staff
assaulter” after Stibbrr’s false disciplinary report. (Doc. 1, pp. 18-31).
Plaintiff repeats the allegations regarding the false disciplinary ticket issued by Buckles
on January 10, 2017, and asserts that Stibbrr was motivated to write the false January 12, 2017,
ticket because Plaintiff’s challenge to the Buckles ticket proved that it was fraudulent, and
because Plaintiff exercised his right to file grievances and pursue litigation. (Doc. 1, pp. 20-22).
On February 20, 2017, while Plaintiff was in segregation, Sgt. Casburn attempted to
place a cellmate with him (Williams) who was seriously mentally ill. (Doc. 1, p. 23). Williams
had been yelling and kicking his cell door for 2 days straight, had attempted suicide, and was
known to throw feces at guards and smear feces on his own body and face. At the time, there
were empty cells on the gallery and many inmates (including Williams) were in cells by
themselves. Plaintiff asserts that Casburn planned to house Williams with him so that Plaintiff
would be harmed or would be forced to harm Williams, and that this was another act of
retaliation because Plaintiff had been labeled as a “staff assaulter.” (Doc. 1, pp. 24-25). Plaintiff
refused to accept Williams as a cellmate. Casburn issued him a ticket for disobeying a direct
3

Smith is not named as a Defendant in the Complaint (Doc. 1, pp. 1-5).

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order, and Plaintiff got another 30 days in segregation. (Doc. 1, p. 25).
Plaintiff was subjected to other ill treatment during his time in segregation. In early
January, after guards became aware of Plaintiff’s false “staff assaulter” label, Plaintiff began to
receive breakfast trays that contained obvious spit on the food. (Doc. 1, pp. 24-25). Plaintiff’s
grievance on the issue disappeared. He stopped eating breakfast for the rest of his time in
segregation. In February, Plaintiff was left in leg shackles for so long that his feet went numb.
Another time he was left in handcuffs in his cell for nearly an hour for no reason. (Doc. 1, p.
24). On February 8, 2017, guards purposely handcuffed Plaintiff so tightly that his wrists and
hands went numb and left him that way in his cell for at least an hour. Id.
Plaintiff was released from segregation on April 27, 2017. (Doc. 1, p. 26). He was
placed back into the same cell house where Stibbrr was the unit commander and where C/O
Johnson, who had verbally harassed Plaintiff on several occasions starting in November 2016,
regularly worked. 4

(Doc. 1, pp. 19, 26).

Plaintiff believes that this placement itself was

retaliatory, but he does not indicate what official made that placement decision. (Doc. 1, p. 28).
Stibbrr verbally harassed Plaintiff, which Plaintiff attributes to his grievance activity. (Doc. 1, p.
27).

C/O Johnson’s verbal harassment, racial slurs, and threats to “kick [Plaintiff’s] ass”

continued through April-June 2017, during which time Plaintiff wrote 4 grievances about this
conduct. (Doc. 1, p. 27). The grievances were never addressed.
On approximately July 11, 2017, C/O Goodrum cursed and yelled at Plaintiff, then told
him he knew who Plaintiff was and what he did to “the Lieutenant,” then stated he did not care
how many grievances Plaintiff writes, “you bitched up once and we’re going to get you.” (Doc.
1, p. 28). Plaintiff had never before spoken to Goodrum. Plaintiff complained to M. McCarthy

4

In November 2016, Plaintiff had complained to L. McCarthy about Johnson’s continuing racist remarks,
but L. McCarthy did nothing. (Doc. 1, p. 19).

7

about Goodrum’s threat, to no avail.
On July 20, 2017, Johnson pulled Plaintiff out of the chow line after accusing him of
holding up the line (Plaintiff states that another officer halted the line and he did nothing
improper). (Doc. 1, p. 29). While escorting Plaintiff back to his unit, Johnson said, “you think
you can just write me up and nothing will happen,” and “I’m going to string your black ass up by
the balls and stick them grievances up your ass.” (Doc. 1, p. 29; see also p. 26). At some point,
Johnson threatened to kill Plaintiff. (Doc. 1, p. 26). This terrified Plaintiff because he had
witnessed Johnson head-butt another inmate 3 days before. Johnson repeated the threat later in
the day, saying he would be working overtime the next few days, and Plaintiff’s “ass will be
found stuffed full of grievances and dangling in the shower.” (Doc. 1, pp. 29-30). Plaintiff
reported the incident and the hanging threat to L. McCarthy, who defended Johnson and then
remarked, “Grievances – you still trying to sue people Patterson – hell, I should help him tie the
knot.” (Doc. 1, p. 30). After this conversation, Johnson confronted Plaintiff on the way back to
his cell, taunted him, and threatened to make Plaintiff his “little bitch” while shoving him and
making kissing noises.

Id.

Plaintiff called twice to the anti-sexual-violence hotline, and

requested to be placed in protective custody (“PC”). (Doc. 1, pp. 26, 30).
After this incident, Plaintiff was charged with another allegedly fraudulent infraction
(apparently written by D. Johnson). (Doc. 1, p. 26). The adjustment committee, composed of
Cooper and T. Stuck (who is not named as a Defendant) gave Plaintiff a choice of either
dropping his PC request, or face criminal charges for assault by the Lawrence County prosecutor.
(Doc. 1, pp. 26, 31). Plaintiff did not drop the PC request. The Complaint does not disclose
whether Plaintiff was criminally charged, or whether he was found guilty of the disciplinary
ticket or punished.

8

Also on July 20, 2017, (after Johnson threatened to string Plaintiff up by his genitals)
Plaintiff went to the visiting area to see his family, expecting to have a normal contact visit.
Lamb had lifted his contact visit restriction some weeks earlier. (Doc. 1, p. 31). However, L.
McCarthy and other officers informed Plaintiff that because he was classified as a “staff
assaulter,” they would not let him have a contact visit. Plaintiff protested that Lamb had
removed the visit restriction, but the officers told him he would “never receive any privileges in
Lawrence” because he had put his hands on staff. Id. Under threat of segregation, Plaintiff
accepted the non-contact visit. The next day, Plaintiff’s family confirmed from a counselor that
Lamb had previously lifted the restriction and the contact visit should have been allowed.
As relief, Plaintiff seeks an injunction ordering Defendants to place him in protective
custody outside of Lawrence. (Doc. 1, p. 33). He also seeks damages.
Merits Review Pursuant to 28 U.S.C. § 1915A
Based on the allegations of the Complaint, the Court finds it convenient to divide the pro
se action into the following counts. The parties and the Court will use these designations in all
future pleadings and orders, unless otherwise directed by a judicial officer of this Court. The
designation of these counts does not constitute an opinion as to their merit. Any other claim that
is mentioned in the Complaint but not addressed in this Order should be considered dismissed
without prejudice.
Count 1: First Amendment and Fourteenth Amendment claims against Buckles,
for intentionally opening and reading Plaintiff’s mail from his attorney outside
Plaintiff’s presence;
Count 2: Fourteenth Amendment due process claim against Buckles, for falsely
charging Plaintiff with a disciplinary violation on January 10, 2017;
Count 3: First Amendment and Fourteenth Amendment claims against Summer,
for opening correspondence from Plaintiff’s attorney and confiscating transcripts
and a stamped return envelope contained in it;
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Count 4: Fourteenth Amendment due process claim against Stibbrr for issuing
Plaintiff a false disciplinary ticket on January 12, 2017; against Givens for failing
to produce exculpatory evidence (surveillance video) requested by Plaintiff; and
against Henton and Cooper for failing to review or consider the video evidence
before finding Plaintiff guilty and punishing him with segregation;
Count 5: Claims against Lamb, White, Baldwin, and Ray for failing to reverse
the disciplinary action described in Count 4; failing to remedy other matters raised
in Plaintiff’s grievances (such as alleged harassment and retaliation); and
mishandling grievances;
Count 6: First Amendment claim against Stibbrr for writing the January 12,
2017, false disciplinary ticket in retaliation for Plaintiff’s successful challenge to
the fraudulent Buckles ticket, and for Plaintiff’s grievance and litigation activity;
Count 7: First Amendment retaliation claim against Casburn for attempting to
place a mentally ill inmate with Plaintiff on February 20, 2017, because Plaintiff
had been labeled a “staff assaulter;”
Count 8: Eighth Amendment cruel and unusual punishment claim against
Stibbrr, Goodrum, and M. McCarthy for subjecting Plaintiff to verbal harassment
after April 27, 2017, and in July 2017;
Count 9: First Amendment retaliation claim against Johnson, for threatening
Plaintiff with bodily harm, sexual assault, and death on July 20, 2017, and issuing
him a fraudulent disciplinary ticket, after Plaintiff filed grievances against
Johnson;
Count 10: Eighth Amendment cruel and unusual punishment claim against
Johnson, for threatening Plaintiff with bodily harm, sexual assault, and death on
July 20, 2017, and against L. McCarthy, for repeating the threat of harm to
Plaintiff;
Count 11: Claim against Cooper for threatening Plaintiff with criminal charges
in the disciplinary hearing on Johnson’s July 2017 ticket, if Plaintiff did not give
up his protective custody request;
Count 12: First Amendment retaliation claim against L. McCarthy, for depriving
Plaintiff of a contact visit with family on July 20, 2017, because Plaintiff had been
labeled as a “staff assaulter.”
Counts 1, 3, 4, 6, 9, and 10 survive review under § 1915A. Counts 2, 5, 7, 8, 11, and 12
shall be dismissed for failure to state a claim upon which relief may be granted.

10

Furthermore, it is apparent that the surviving claims are not properly joined in a single
action. See George v. Smith, 507 F.3d 605 (7th Cir. 2007). The Seventh Circuit directs that
unrelated claims against different defendants belong in separate lawsuits, “not only to prevent the
sort of morass” produced by multi-claim, multi-defendant 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)). Pursuant to Federal Rules of Civil Procedure 20 and 21, the
claims in Counts 4 and 6 (involving Stibbrr, Givens, Henton, and Cooper) shall be severed into a
new action, as will the claims in Counts 9 and 10 (against Johnson and L. McCarthy). Plaintiff
shall be assessed additional filing fees for the 2 severed cases. Counts 1 and 3 (involving
Buckles and Summer) shall remain in this action.
Count 1 – Buckles – Opening and Reading Legal Mail
Under the First Amendment, prisoners have the right to send and receive mail, but prison
official may inspect incoming and outgoing mail for contraband. Wolff v. McDonnell, 418 U.S.
539, 576 (1974); Rowe v. Shake, 196 F.3d 778, 782 (7th Cir. 1999). Mail from an attorney who
is representing a prisoner is entitled to greater protection, in order to avoid interference with the
prisoner’s right to access the courts. Incoming mail from an attorney that is clearly marked as
legal or privileged mail must be opened only in the presence of the prisoner. See Wolff, 418 U.S.
at 577; Rowe, 196 F.3d at 782. Further, prison officials’ practice of reading correspondence
between an inmate and his lawyer “raise[s] serious issues under the Sixth Amendment (and its
application, by interpretation of the Fourteenth Amendment, to state criminal defendants), which
guarantees a right to counsel in criminal cases.” Guajardo-Palma v. Martinson, 622 F.3d 801,
803, 805 (7th Cir. 2010). A prisoner who raises a claim based on interference with legal mail
must demonstrate some resulting hindrance to his ability to pursue a legal claim or defense. See

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Kaufman v. McCaughtry, 419 F.3d 678, 685-86 (7th Cir. 2005). However, “proof of a practice
of reading a prisoner's correspondence with his lawyer should ordinarily be sufficient to
demonstrate hindrance.” Guajardo-Palma, 622 F.3d at 805 (emphasis in original).
Here, Plaintiff alleges that on January 10, 2017, Buckles delivered a letter to Plaintiff
from his attorney, which had already been opened. When Plaintiff questioned Buckles, he stated
that he had opened the envelope to “make sure” that Plaintiff would not sue anybody at
Lawrence. (Doc. 1, p. 10). Buckles’ comment indicates that he purposely opened Plaintiff’s
letter outside Plaintiff’s presence, and that he read the letter to see whether Plaintiff was suing
any Lawrence officials. Such conduct may have violated Plaintiff’s First Amendment rights. If
the correspondence was in reference to Plaintiff’s pending criminal appeal, his Fourteenth
Amendment rights may also be implicated. At this stage, the claims against Buckles in Count 1
warrant further review, and shall proceed in this action.
Dismissal of Count 2 – Due Process – Buckles
To the extent that Plaintiff seeks to assert a due process claim against Buckles for issuing
the fraudulent disciplinary ticket on January 10, 2017, no due process violation occurred.
the Seventh Circuit held in Hanrahan v. Lane, 747 F.2d 1137, 1140-41 (7th Cir. 1984),
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 he is afforded the procedural protections outlined in Wolff v. McDonnell, 418 U.S. 539
(1974) (advance written notice of the charge, right to appear before the hearing panel, the right to
call witnesses if prison security allows, and a written statement of the reasons for the discipline
imposed). 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

12

protections outlined in Wolff provided the appropriate safeguard against arbitrary actions taken
by a correctional officer such as issuing the inmate a fabricated conduct violation.
Plaintiff does not discuss the disciplinary hearing other than to say that he succeeded in
proving Buckles’ charge to be false, by presenting written proof that he was in the commissary at
the time Buckles accused him of being in the dayroom without authorization. This outcome
demonstrates that Plaintiff received due process, and the ticket was expunged. Accordingly,
Plaintiff cannot sustain a constitutional claim against Buckles based on the filing of a false
charge. The due process claim in Count 2 shall therefore be dismissed with prejudice for failure
to state a claim upon which relief may be granted.
Count 3 – Summer – Opening and Confiscation of Legal Mail
The precedent outlined under Count 1 above also applies to this claim. Summer may not
have opened Plaintiff’s letter from his appellate attorney before bringing it to Plaintiff’s cell. But
he apparently went beyond inspecting the contents for contraband when he confiscated the
transcript which was intended for Plaintiff, as well as the stamped envelope which the lawyer
instructed Plaintiff to use in order to return the receipt documenting that he had received the
material. (Doc. 1, p. 9-10). Summer’s confiscation of Plaintiff’s transcript may have hindered
Plaintiff’s prosecution of his criminal appeal, though the Complaint does not discuss that point.
Further factual development is appropriate in order to determine whether Summer’s
actions resulted in a violation of Plaintiff’s First and/or Fourteenth Amendment rights. Count 3
shall therefore proceed in this action.
Count 4 – Due Process – Stibbrr, Givens, Henton, & Cooper
The allegedly false disciplinary ticket issued by Stibbrr on January 12, 2017, resulted in a
guilty finding by Henton and Cooper, and Plaintiff spent 3 months in segregation as a result.

13

Although Plaintiff stated that his punishment included the loss of good conduct credits as well,
the Court concludes, based on the final report of the adjustment committee, that he did not
actually lose any good time. (Doc. 1-1, pp. 5-6, 25). As such, this claim would not be barred by
the doctrine of Heck v. Humphrey, 512 U.S. 477 (1994). See also Edwards v. Balisok, 520 U.S.
641 (1997) (§ 1983 claim for damages is barred if it would imply the invalidity of a disciplinary
decision revoking good-conduct credit, unless disciplinary action has been reversed).
As noted under Count 2, prisoners are entitled to certain minimal procedural protections
in disciplinary proceedings involving the loss of good time, confinement in disciplinary
segregation, or some comparable deprivation of a constitutionally protected liberty interest.
Wolff v. McDonnell, 418 U.S. 539, 556-572 (1974).
Wolff required that inmates facing disciplinary charges for misconduct be
accorded [1] 24 hours’ advance written notice of the charges against them; [2] a
right to call witnesses and present documentary evidence in defense, unless doing
so would jeopardize institutional safety or correctional goals; [3] the aid of a staff
member or inmate in presenting a defense, provided the inmate is illiterate or the
issues complex; [4] an impartial tribunal; and [5] a written statement of reasons
relied on by the tribunal. 418 U.S. at 563-572.
Hewitt v. Helms, 459 U.S. 460, 466 n.3 (1983). Further, due process requires that the findings of
the disciplinary tribunal must be supported by some evidence in the record. Superintendent v.
Hill, 472 U.S. 445, 455 (1985); Black v. Lane, 22 F.3d 1395, 1402 (7th Cir. 1994). Even a
meager amount of supporting evidence is sufficient to satisfy this inquiry. Scruggs v. Jordan,
485 F.3d 934, 941 (7th Cir. 2007).
In Plaintiff’s case, he asserts that he was denied the opportunity to present documentary
evidence in his defense (the surveillance videotape), even though he requested this evidence in
advance of the hearing. Givens failed to review the tape or provide it to Henton and Cooper, and
Henton and Cooper ruled on the ticket without viewing the tape. This suggests that Plaintiff was

14

deprived of one of the Wolff due process protections.
Plaintiff also challenges the impartiality of Henton and Cooper. Notably, the failure to
follow the Illinois Administrative Code’s requirement as to the makeup of the panel does not
establish a constitutional due process violation. A federal court does not enforce state law or
regulations. Archie v. City of Racine, 847 F.2d 1211, 1217 (7th Cir. 1988) (en banc), cert.
denied, 489 U.S. 1065 (1989); Pasiewicz v. Lake Cnty. Forest Preserve Dist., 270 F.3d 520, 526
(7th Cir. 2001). Contrary to Plaintiff’s assertion, the administrative code does not establish a
constitutionally protected liberty interest. However, Plaintiff’s claim that Stibbrr, who authored
the disciplinary ticket, was the supervising officer of Henton and Cooper may suggest a lack of
impartiality on their part in determining Plaintiff’s guilt or innocence on Stibbrr’s charges.
At this stage, the Complaint sufficiently alleges that procedural due process requirements
were not followed in adjudicating the January 12, 2017, disciplinary ticket. However, more is
needed to state a claim for deprivation of a liberty interest without due process. Even if the
hearing violated the Wolff procedural standards, a prisoner cannot maintain a constitutional claim
for deprivation of a liberty interest without due process unless the conditions of the disciplinary
segregation imposed an “atypical and significant hardship” on the inmate when compared to the
conditions he would have faced in nondisciplinary segregation. Sandin v. Conner, 515 U.S. 472,
484 (1995); see also Wagner v. Hanks, 128 F.3d 1173, 1175 (7th Cir. 1997).
In order to assess whether a plaintiff was subjected to atypical and significant hardships,
courts consider both the duration of the punitive segregation term, and the conditions of that
confinement. Marion v. Columbia Corr. Inst., 559 F.3d 693, 697-98 (7th Cir. 2009). For
relatively short periods of disciplinary segregation, inquiry into specific conditions of
confinement is unnecessary, and the claim would be subject to dismissal. See Lekas v. Briley,

15

405 F.3d 602, 612 (7th Cir. 2005) (56 days); Thomas v. Ramos, 130 F.3d 754, 761 (7th Cir.
1997) (70 days) (“a relatively short period when one considers his 12 year prison sentence”). In
these cases, the short duration of the disciplinary segregation forecloses any due process liberty
interest regardless of the conditions. See Marion, 559 F.3d at 698 (“we have affirmed dismissal
without requiring a factual inquiry into the conditions of confinement”). Only if the disciplinary
segregation period was sufficiently long and if the conditions of confinement were unusually
harsh, may an inmate maintain a civil rights claim for deprivation of a liberty interest without
due process.
Here, Plaintiff was punished with 3 months in segregation as a result of the January 12,
2017 ticket. This 90-day period may be long enough to trigger an inquiry into the conditions of
Plaintiff’s confinement in disciplinary segregation, although it is a relatively short time in the
context of the 50-year sentence that Plaintiff is serving. 5 See Thomas, 130 F.3d at 761 (70 days
in segregation is relatively short compared to total 12-year sentence). Nonetheless, Plaintiff
includes allegations that he was treated harshly during his time in segregation – including being
served food contaminated with spit, and being placed in leg shackles and handcuffs which
caused his feet and hands to go numb, on more than one occasion. 6 At this early stage, Plaintiff
states a cognizable claim for deprivation of a liberty interest without due process.
Accordingly, Plaintiff may proceed with the due process claim in Count 4 against
Stibbrr, Givens, Henton, and Cooper. However, this claim shall be severed into a separate action
along with Count 6 against Stibbrr.

5

See Website of the Illinois Department of Corrections, Offender Search page,
http://www.illinois.gov/idoc/Offender/Pages/InmateSearch.aspx (Last visited November 30, 2017).
6
The Court did not designate the food contamination or shackling incidents as separate claims in this
case, because Plaintiff did not identify the individual officers who took those actions.

16

Dismissal of Count 5 – Grievances/Failure to Intervene
Plaintiff’s claims against Counselor Ray, Warden Lamb, ARB member White, and IDOC
Director Baldwin seek to impose liability on them for failing to properly handle or respond to
Plaintiff’s grievances, and/or failing to remedy the problems that Plaintiff complained about in
his grievances. However, none of Plaintiff’s factual allegations suggest that Ray, Lamb, White,
or Baldwin were personally involved in the incidents of legal mail interference, bringing or
adjudicating false disciplinary charges, retaliation and harassment, or issuing threats against
Plaintiff. These Defendants only became aware of these problems (if at all) after other prison
officials allegedly mistreated Plaintiff or violated his rights.
In order to be held individually liable for a civil rights violation, “a defendant must be
‘personally responsible for the deprivation of a constitutional right.’” Sanville v. McCaughtry,
266 F.3d 724, 740 (7th Cir. 2001) (quoting Chavez v. Ill. State Police, 251 F.3d 612, 651 (7th
Cir. 2001)).

A defendant’s role in responding to prisoner grievances does not constitute

“personal involvement” in the constitutional deprivation that gave rise to the grievance.
Additionally, the fact that Lamb and Baldwin held positions of authority over the officials who
allegedly violated Plaintiff’s rights cannot be the basis for liability in a civil rights action, where
the doctrine of respondeat superior (supervisory liability) does not apply. Sanville, 266 F.3d at
740.
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 605, 609 (7th Cir. 2007); Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir.
1996). Thus, the failure to investigate or respond to Plaintiff’s grievances, or any other action or

17

inaction with regard to the grievance procedure on the part of Ray, Lamb, White, or Baldwin,
will not support an independent constitutional claim. “[A] state’s inmate grievance procedures
do not give rise to a liberty interest protected by the Due Process Clause.” Antonelli, 81 F.3d at
1430. The Constitution requires no procedure at all, and the failure of state prison officials to
follow their own grievance procedures does not, of itself, violate the Constitution. Maust v.
Headley, 959 F.2d 644, 648 (7th Cir. 1992); Shango v. Jurich, 681 F.2d 1091, 1100-01 (7th Cir.
1982).
For these reasons, the claims in Count 5 against Ray, Lamb, White, and Baldwin for
failing to take action in response to Plaintiff’s grievances, shall be dismissed with prejudice for
failure to state a claim upon which relief may be granted.
Count 6 – Retaliation – Stibbrr
This claim also references the January 12, 2017, disciplinary ticket issued by Stibbrr
when Plaintiff allegedly grabbed Stibbrr’s arms and shoved him. In addition to the due process
claim in Count 4 based on that disciplinary action, Plaintiff asserts that Stibbr issued the
fabricated ticket in retaliation for Plaintiff’s successful challenge to the January 10, 2017, ticket
where Buckles falsely accused Plaintiff of unauthorized movement.
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 Cir. 2012); Walker v. Thompson, 288 F.3d 1005 (7th Cir. 2002); DeWalt v. Carter, 224
F.3d 607 (7th Cir. 2000); Babcock v. White, 102 F.3d 267 (7th Cir. 1996); Cain v. Lane, 857
F.2d 1139 (7th Cir. 1988). 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

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retaliatory action. Bridges v. Gilbert, 557 F.3d 541, 551 (7th Cir. 2009). “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).
Here, Plaintiff claims that his protected First Amendment activity (bringing a challenge
to a disciplinary ticket, which Plaintiff proved to be false) was closely followed by Stibbrr’s
action of issuing Plaintiff another fabricated disciplinary charge. Plaintiff asserts that Stibbrr
was aware that Plaintiff beat the earlier ticket, and was motivated by that incident to charge
Plaintiff with another disciplinary infraction.

Plaintiff certainly experienced adverse

consequences from Stibbrr’s January 12 disciplinary charge, which would deter an ordinary
person from asserting his First Amendment rights in the future. At this stage, the retaliation
claim against Stibbrr in Count 6 merits further review.
The claim in Count 6 shall be severed into a separate action along with the claim in
Count 4, which involves Stibbrr and relates to the same disciplinary charge.
Dismissal of Count 7 – Retaliation – Casburn
The incident giving rise to the retaliation claim against Casburn arose on February 20,
2017, over a month after Plaintiff was placed in segregation as punishment for the disciplinary
charge brought by Stibbrr (described in Counts 4 and 6). Plaintiff explains that as a result of the
guilty finding in that disciplinary action, he was labeled as a “staff assaulter.” He further claims
that various officials became aware of the “staff assaulter” designation, and therefore targeted
him for ill treatment. Plaintiff alleges that Casburn’s attempt to place a mentally ill, disruptive
inmate into Plaintiff’s segregation cell as his cellmate was one of the incidents that followed
from the “staff assaulter” designation.

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As explained under Count 6, an inmate may maintain a retaliation claim if he was
subjected to some adverse action as a result of engaging in protected First Amendment activity –
for example, filing a grievance, raising a verbal complaint, or filing a lawsuit over prison
conditions, staff conduct, or a disciplinary action. Gomez v. Randle, 680 F.3d 859, 866 (7th Cir.
2012); Bridges v. Gilbert, 557 F.3d 541, 552 (7th Cir. 2009). A retaliatory motive may be
inferred from the chronology of events leading up to the adverse/retaliatory action. Zimmerman
v. Tribble, 226 F.3d 568, 573 (7th Cir. 2000).
Casburn’s attempt to house the objectionable and possibly dangerous cellmate with
Plaintiff could qualify as an “adverse action” to support a retaliation claim. However, Plaintiff
explains that Casburn targeted him because he had been labeled as a “staff assaulter,” not
because of Plaintiff’s grievance or litigation activity. Even if the “staff assaulter” label was
wrongly applied to Plaintiff, that classification does not constitute First Amendment speech or
activity that must be present to support a retaliation claim. To the contrary, assaulting a prison
staff member is outlawed by prison rules. The Court at this stage accepts Plaintiff's assertion that
he was falsely accused of the staff assault. However, even assuming he was innocent, being
charged with a conduct violation is not a “protected activity” that would support a First
Amendment claim. The same is true of the “staff assaulter” accusation; this label (or any other
prison classification) is not a protected First Amendment activity on the part of the prisoner.
Adverse action against Plaintiff that was motivated by his designation as a “staff
assaulter” does not amount to unconstitutional retaliation against Plaintiff for First Amendment
activity. For this reason, the retaliation claim in Count 7 against Casburn for attempting to give
Plaintiff a mentally ill cellmate shall be dismissed without prejudice for failure to state a claim
upon which relief may be granted.

20

Plaintiff incurred another adverse consequence because he refused to accept the cellmate,
when he was punished with an additional month of segregation for disobeying an order.
However, there is no basis to claim that this conduct violation was false, because Plaintiff admits
that he rejected the cellmate assignment. Therefore, the Complaint does not reveal any basis for
a due process claim based on this incident.
Dismissal of Count 8 – Verbal Harassment
Plaintiff describes being the target of verbal harassment on a number of occasions, some
of it apparently triggered by his possession of legal property, and some of it racial in nature.
This claim encompasses incidents of cursing and other verbal harassment directed at Plaintiff by
Stibbrr in April 2017, and by Goodrum in July 2017. Lt. M. McCarthy is included with this
claim because Plaintiff complained to him about the incident with Goodrum. (Doc. 1, pp 19, 2627). None of these incidents rose to the level of a constitutional violation, however.
The use of racially derogatory language, while unprofessional and deplorable,
does not violate the Constitution. See Patton v. Przybylski, 822 F.2d 697, 700
(7th Cir. 1987); accord Williams v. Bramer, 180 F.3d 699, 706 (5th Cir.), clarified
on rehearing, 186 F.3d 633 (5th Cir. 1999). Standing alone, simple verbal
harassment does not constitute cruel and unusual punishment, deprive a prisoner
of a protected liberty interest or deny a prisoner equal protection of the laws. See
Ivey v. Wilson, 832 F.2d 950, 955 (6th Cir. 1987) (per curiam) (Eighth
Amendment); Patton, 822 F.2d at 700 (due process); Williams, 180 F.3d at 70506 (equal protection). See generally Shabazz v. Cole, 69 F. Supp. 2d 177, 199201 (D. Mass. 1999) (collecting cases).
DeWalt v. Carter 224 F.3d 607, 612 (7th Cir. 2000).

See also Dobbey v. Ill. Dep’t of

Corrections, 574 F.3d 443, 446 (7th Cir. 2009) (“harassment, while regrettable, is not what
comes to mind when one thinks of ‘cruel and unusual’ punishment”).
Under this authority, Plaintiff cannot maintain a constitutional claim against Stibbr,
Goodrum, or M. McCarthy based on their verbal harassment. Count 8 shall be dismissed
without prejudice for failure to state a claim upon which relief may be granted.
21

Count 9 – Retaliation – Johnson
Plaintiff filed 4 grievances against Johnson in April-June 2017, complaining about
Johnson’s racial and other verbal harassment, and his threats to “kick [Plaintiff’s] ass.” (Doc. 1,
p. 27). When Johnson pulled Plaintiff aside on July 20, 2017, he told Plaintiff, “you think you
can just write me up and nothing will happen,” before proceeding to tell Plaintiff that he was
going to string him up and stick his grievances up his ass. (Doc. 1, pp. 26, 29). Soon after
Johnson’s repeated threats to harm or kill Plaintiff, Johnson charged Plaintiff with a fraudulent
conduct violation for intimidation or threat, and insolence. (Doc. 1, p. 26). Plaintiff claims the
charge was filed “to cover up the repeated retaliation.” Id.
Johnson’s escalating threats of harm and the allegedly false disciplinary charges followed
Plaintiff’s protected activity of filing grievances against Johnson. At this stage, Plaintiff’s
factual allegations support a retaliation claim against Johnson for the threats and false ticket. See
Bridges v. Gilbert, 557 F.3d 541, 552 (7th Cir. 2009); Zimmerman v. Tribble, 226 F.3d 568, 573
(7th Cir. 2000). Plaintiff may therefore proceed with the retaliation claim in Count 9. However,
the claim in Count 9 shall proceed in a separate severed action along with the claim in Count 10.
Count 10- Eighth Amendment – Johnson & L. McCarthy
In contrast to the verbal harassment described in Count 8, Johnson’s harassment of
Plaintiff arguably crossed the line into the realm of actionable cruel and unusual punishment.
Johnson’s verbal harassment and racial slurs from April into July 2017 included threats to beat
Plaintiff. This behavior escalated on July 20, 2017, when Johnson confronted Plaintiff and
threatened to hang him by his genitals and stick Plaintiff’s grievances up his ass, and also
threatened to kill Plaintiff. (Doc. 1, pp. 26, 29). Plaintiff took the threats seriously, because he
had recently seen Johnson physically assault another inmate. Johnson repeated the hanging

22

threat later in the day, and Plaintiff feared for his life as a result. After Plaintiff reported
Johnson’s conduct to L. McCarthy, Johnson added to the threat by telling Plaintiff he would
make Plaintiff his “bitch.” That statement was accompanied by Johnson physically shoving
Plaintiff and making kissing noises as he walked Plaintiff to his cell. Given the lack of response
to Plaintiff’s report of the threats, he was so concerned for his safety that he asked to be placed in
protective custody.
Plaintiff reported Johnson’s threats to L. McCarthy because he was in fear for his safety.
Instead of taking any remedial action, McCarthy commented disparagingly on Plaintiff’s
grievance activity, and told Plaintiff that he “should help [Johnson] tie the knot.” (Doc. 1, p. 30).
With both officials threatening to harm him, Plaintiff felt himself to be at risk.
In some circumstances, a threat may rise to the level of cruel and unusual punishment.
Dobbey v. Ill. Dept. of Corr., 574 F.3d 443, 445 (7th Cir. 2009). See also Beal v. Foster, 803
F.3d 356, 357-58 (7th Cir. 2015) (dismissal of Eighth Amendment claim based on harassment
was premature, where plaintiff alleged psychological trauma to the extent of seeking mental
health care; harassment was sexual in nature and included physical conduct beyond the verbal
harassment). Courts must apply an objective standard to determine whether a particular threat,
given all the circumstances, may amount to a constitutional violation. Dobbey, 574 F.3d at 445.
The pertinent inquiry is whether a “reasonable” victim would fear for his or her life as a result of
the threat; not whether the particular plaintiff experienced actual fear. Id. (citing Farmer v.
Brennan, 511 U.S. 825, 834 (1994); Hudson v. McMillian, 503 U.S. 1, 8 (1992); Collins v.
Seeman, 462 F.3d 757, 760 (7th Cir. 2006)).
In light of the repetition and escalation of Johnson’s threats, coupled with McCarthy’s
additional threat and his unwillingness to intervene, Plaintiff may be able to meet the standard to

23

demonstrate an objectively serious threat that violated the Eighth Amendment. The claims
against Johnson and L. McCarthy in Count 10 may therefore proceed, in the new case to be
severed from this action along with Count 9.
Dismissal of Count 11 – Cooper
This claim is based on Cooper’s participation on the adjustment committee that (on July
27, 2017) considered the allegedly false disciplinary report filed by Johnson on or about July 20,
2017 (see Count 9). (Doc. 1, p. 26). According to Plaintiff, Cooper and the other adjustment
committee member threatened to have criminal charges filed against Plaintiff if he did not give
up his request for protective custody. (Doc. 1, pp. 26, 31). Plaintiff states that he did not drop
his protective custody request, but he gives no further information about the disciplinary
proceedings. He does not indicate whether he was found guilty of the allegedly false charges or,
if so, what sanctions he incurred. The Complaint includes no more information regarding the
threatened criminal charges.
It is not clear what, if any, claim Plaintiff may be trying to pursue against Cooper based
on this incident. There is too little information to assess whether Plaintiff’s right to due process
was violated in the disciplinary proceedings. Because Plaintiff does not further discuss the
matter of the threatened criminal charge, there is no basis to conclude that this was anything
more than an idle threat. Conceivably, there could be a retaliation claim based on these events,
but the Complaint does not indicate that Cooper actually took any adverse action against Plaintiff
because of Plaintiff’s request for protective custody.
At this juncture, Count 11 against Cooper, based on the events in connection with the
July 27, 2017, disciplinary hearing, shall be dismissed without prejudice for failure to state a
claim upon which relief may be granted. Plaintiff may re-plead this claim if he wishes to pursue

24

it further.
Dismissal of Count 12 – Retaliation – L. McCarthy
Plaintiff characterizes L. McCarthy’s refusal to allow him a contact visit with family on
July 20, 2017, as retaliation against him based on his designation as a “staff assaulter.” (Doc. 1,
p. 31). Plaintiff does not connect the contact-visit denial with any other action on his part that
might be characterized as protected First Amendment activity.
As discussed under Count 7, a retaliation claim cannot be premised on an inmate’s
classification as a “staff assaulter,” even if that label was wrongfully applied.

Such a

classification is not a protected action or activity on the part of the inmate who was given the
label. For this reason, the retaliation claim against L. McCarthy in Count 12 shall be dismissed
without prejudice, for failure to state a claim upon which relief may be granted.
Severance of Claims & Defendants
In addition to conducting the merits review under § 1915A, the Court must consider
whether the surviving claims and parties may properly proceed in the same joint action, in
consideration of Federal Rule of Civil Procedure 20. Under Rule 20(a)(2), 7 a “plaintiff may join
multiple defendants in a single action only if plaintiff asserts at least one claim to relief against
each of them that arises out of the same transaction or occurrence and presents questions of law
or fact common to all.” Wright, Miller, & Kane, 7 Federal Practice & Procedure Civ. 3d § 1655
(West 2017); FED. R. CIV. P. 20(a)(2).
The claims in Counts 1 and 3 against Buckles and Summer for opening Plaintiff’s legal
correspondence arose from incidents 2 days apart, which arguably were 2 separate transactions

7

Rule 20, which governs joinder of parties in a single action, must be satisfied before the Court turns to
the question of whether claims are properly joined under Rule 18. Intercon Research Assoc’s, Ltd. v.
Dresser Industries, Inc., 696 F.2d 53, 57 (7th Cir. 1982); Wright, Miller, & Kane, 7 Federal Practice &
Procedure Civil 3d § 1655 (West 2017).

25

or occurrences.

As the claims present common legal questions, and may involve some

overlapping factual questions, they shall be allowed to proceed together at this stage and shall
remain in this original action.

However, further severance pursuant to Rule 20 may be

appropriate as the case progresses.
The claims in Count 4 involving Stibbrr, Givens, Henton, and Cooper all relate to
Stibbr’s January 12, 2017, allegedly false disciplinary ticket and the hearing process that ensued.
The retaliation claim in Count 6 against Stibbr arose from the same disciplinary charge and will
involve common factual questions, thus Counts 4 and 6 are properly joined. However, the
incident underlying Counts 4 and 6 is distinct from the transactions and occurrences that gave
rise to the other claims in the Complaint.
Count 9 against Johnson and Count 10 against Johnson and L. McCarthy both arose from
incidents on July 20, 2017. Counts 9 and 10 are factually intertwined with each other, but arose
from distinct transactions/occurrences from the other 2 groups of claims.
Under Rule 20(a)(2) and George v. Smith, 507 F.3d 605 (7th Cir. 2007), it would be
improper for all the above claims, against distinct groups of Defendants, to proceed in the same
action. Accordingly, the claims in Counts 4 and 6 shall be severed into a new case, and Counts 9
and 10 shall be severed into a second new action.
Pending Motions
Plaintiff’s motions for recruitment of counsel (Docs. 3 & 12) shall be referred to the
United States Magistrate Judge for further consideration in this action.
Along with the Complaint, Plaintiff filed a “Memorandum of law in support of motion
for a preliminary injunction.” (Doc. 4). This 35-page memorandum was docketed as a motion
for preliminary injunction.

In it, Plaintiff seeks an order from this Court to place him in

26

protective custody in another institution outside of Lawrence, because of the threats of physical
and sexual violence and the other alleged violations of his constitutional rights.
Notably, Plaintiff was transferred to Hill Correctional Center after he filed this action.
Because Plaintiff is no longer an inmate at Lawrence, his motion seeking injunctive relief
appears to now be moot, unless he can show “a realistic possibility that he will again be
incarcerated in the same state facility and therefore be subject to the actions of which he
complains here.” Maddox v. Love, 655 F.3d 709, 716 (7th Cir. 2011) (citing Ortiz v. Downey,
561 F.3d 664, 668 (7th Cir. 2009)).
The threats of serious physical harm on which Plaintiff’s motion rests are connected
primarily to the claims that have been designated herein as Counts 9 and 10. (Doc. 4, pp. 1-9).
Therefore, when the Clerk opens a new severed case for those claims against Johnson and L.
McCarthy, the motion at Doc. 4 shall be transferred to that newly opened case for any further
consideration that may be warranted. Doc. 4 shall be terminated on the docket of the instant
case.
Disposition
COUNTS 2 and 5 are DISMISSED with prejudice for failure to state a claim upon
which relief may be granted. COUNTS 7, 8, 11, and 12 are DISMISSED without prejudice for
failure to state a claim upon which relief may be granted.
Defendants LAMB, M. McCARTHY, CASBURN, GOODRUM, BALDWIN,
WHITE, and RAY are DISMISSED from this action without prejudice.
IT IS FURTHER ORDERED that, pursuant to Federal Rule of Civil Procedure
20(a)(2), Plaintiff’s due process and retaliation claims in COUNTS 4 and 6, and the retaliation

27

and Eighth Amendment claims in COUNTS 9 and 10, are SEVERED into 2 new cases. The
new cases shall be:
FIRST SEVERED CASE: Claims against DEFENDANTS STIBBRR, HENTON,
COOPER, and GIVENS, including Count 4 – Due Process, and Count 6 – Retaliation; and
SECOND SEVERED CASE:

Claims against JOHNSON and L. McCARTHY,

including Count 9 – Retaliation, and Count 10 – Cruel and Unusual Punishment.
In each new case, the Clerk is DIRECTED to file the following documents:
(1)
(2)
(3)

This Memorandum and Order
The Original Complaint (Doc. 1)
Plaintiff’s motion to proceed in forma pauperis (Doc. 2)

In addition, the Clerk is DIRECTED to file the motion for preliminary injunction (Doc.
4) in the SECOND SEVERED CASE (with Counts 9 & 10). The Clerk shall TERMINATE
the motion at Doc. 4 in this original case.
Plaintiff will be responsible for an additional $350.00 filing fee in each new severed
case.
Because this Memorandum and Order contains the §1915A merits review of the severed
Counts 4, 6, 9, and 10, service may be ordered without delay on Defendants Stibbrr, Henton,
Cooper, and Givens in the first severed case, and on Johnson and L. McCarthy in the second
severed case, as soon as the new cases are opened and the judge assignments are made.
IT IS FURTHER ORDERED that the only claims remaining in this action are
COUNT 1 against Defendant BUCKLES, and COUNT 3 against Defendant SUMMER, for
opening and reading Plaintiff’s legal correspondence, and (Count 3 only) confiscating Plaintiff’s
incoming legal documents.

This case shall now be captioned as: RICKY PATTERSON,

Plaintiff, vs. BUCKLES, and SUMMER, Defendants.

28

IT IS FURTHER ORDERED that Defendants JOHNSON, L. McCARTHY,
STIBBRR, HENTON, COOPER, and GIVENS are TERMINATED from this action with
prejudice.
As to COUNTS 1 and 3, which remain in the instant case, the Clerk of Court shall
prepare for Defendants BUCKLES and SUMMER: (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 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.
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 Stephen C. Williams for further pre-trial proceedings, which shall include a
determination on the pending motions for recruitment of counsel (Docs. 3 & 12).

29

Further, this entire matter shall be REFERRED to United States Magistrate Judge
Williams 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: December 5, 2017

s/ MICHAEL J. REAGAN
Chief Judge
United States District Court

30