Morris v. Engelage

Filing 6

IT IS HEREBY ORDERED that the Complaint is DISMISSED without prejudice for failure to state a claim upon which relief may be granted. IT IS FURTHER ORDERED that COUNTS 2 and 3, and Defendant ENGELAGE, are DISMISSED without prejudice for failure to s tate a claim upon which relief may be granted. IT IS FURTHER ORDERED that, should he wish to proceed with this case, Plaintiff shall file a First Amended Complaint, stating any facts which may exist to support a cognizable § 1983 claim, within 28 days of the entry of this order (on or before December 27, 2017). Should Plaintiff fail to file his First Amended Complaint within the allotted time or consistent with the instructions set forth in this Order, the entire case shall be dismissed with prejudice for failure to comply with a court order and/or for failure to prosecute his claims. (Amended Pleadings due by 12/27/2017). Signed by Judge Nancy J. Rosenstengel on 11/28/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ROBERT E. MORRIS,
# R-71372,
Plaintiff,
vs.
R. ENGELAGE,
Defendant.

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Case No. 17-cv-1167-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
In Morris v. Lee, Case No. 17-cv-857-NJR (S.D. Ill. Aug. 14, 2017), Plaintiff Robert
Morris, an inmate in Menard Correctional Center, brought suit for deprivations of his
constitutional rights pursuant to 42 U.S.C. § 1983. Pursuant to George v. Smith, 507 F.3d 605
(7th Cir. 2007), two claims against Defendant Engelage were severed from that initial action to
form the basis for this action, Case No. 17-cv-1167-NJR.
This case is now before the Court for a preliminary review of those claims 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.”

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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, 102627 (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).
After fully considering the relevant allegations in Plaintiff’s Complaint, the Court
concludes that this action is subject to summary dismissal.
The Complaint
The allegations in Plaintiff’s Complaint (Doc. 2) relevant to this severed action are as
follows: on December 31, 2016, Plaintiff was seen by Engelage, an EMT. 1 Engelage attempted
to complete a tuberculosis test. Id. Plaintiff refused to comply because Engelage wanted to
perform the test using the “chuckhole” in Plaintiff’s cell. Id. Plaintiff contends that conducting a
tuberculosis test in this manner (1) is unsanitary – because both Plaintiff and his cellmate receive
their food through the chuckhole and thus the chuckhole could contain “micro-miniature blood
splatter” and (2) violates prison procedures for medical/forensic examinations. Id.
When Plaintiff refused, Engelage issued a disciplinary ticket for failure to submit to
medical/forensic testing. (Doc. 2, pp. 10, 23-25). In connection with this disciplinary ticket,
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In the caption of the Complaint and list of defendants, Plaintiff identifies R. Engelage as a defendant. (Doc. 2,
pp. 1-2). R. Engelage is described as an emergency medical technician (EMT). Id. More specifically, Plaintiff
indicates that R. Engelage “does issues like hypodermic needle testings thr[ough] the inmates[’] chuckhole where
they eat at. Instead of taking them to sanitary environments. Stating: ‘It’s easier for me to do it this way – I don’t
care about what’s sanitary for you, it’s sanitary for me and faster.’” (Doc. 2, p. 2). In his statement of claim, Plaintiff
directs claims against “Ms. Reva Engelage…EMT” and “Reva.” (Doc. 2, p. 10). Reading the Complaint in its
entirety, it is evident that allegations pertaining to “Ms. Reva Engelege” and “Reva” are directed at the EMT
Defendant identified as R. Engelage.

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Plaintiff spent between four and six days in segregation. (Doc. 2, p. 10 (alleging four days in
segregation) and Doc. 2, p. 24 (alleging six days in segregation)). Eventually, Plaintiff was seen
by Brookman, the adjustment committee/hearing board chairman. (Doc. 2, p. 10). Thereafter,
Plaintiff was released from segregation. Id. The disciplinary ticket was subsequently expunged.
(Doc. 2, pp. 23-25). The Complaint suggests that Plaintiff is alleging issuance of the disciplinary
ticket was unjustified. (Doc. 2, p. 10). The Complaint does not address what, if any, procedural
protections Plaintiff was afforded in connection with the disciplinary ticket and his time in
segregation.
Discussion
In its Severance Order (Doc. 1), the Court designated the following counts to be severed
into this pro se action. The parties and the Court will continue to use these designations in all
future pleadings and orders, unless otherwise directed by a judicial officer of this Court.
Count 2 –

Eighth Amendment deliberate indifference claim against Engelage
for attempting to perform a tuberculosis test through the
“chuckhole” in Plaintiff’s cell.

Count 3 –

Procedural and/or substantive due process claim against Engelage
for issuing an unjustified disciplinary ticket, resulting in Plaintiff
spending between four and six days in segregation

As discussed in more detail below, Counts 2 and 3 will be dismissed for failure to state a
claim upon which relief may be granted.
Count 2 – Deliberate Indifference
A prison official’s deliberate indifference to an inmate’s health or safety may violate the
Eighth Amendment’s ban on cruel and unusual punishment. See Farmer v. Brennan, 511 U.S.
825, 834 (1994). The inmate must allege both an objective and a subjective component of the
claim. To satisfy the objective component, the alleged deprivation must be “sufficiently serious”;

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that is, it must expose the inmate to a “substantial risk of serious harm.” Id. (internal quotation
marks omitted). To satisfy the subjective element, the prison official must have acted with
deliberate indifference to the inmate’s health or safety; the official “must both be aware of facts
from which the inference could be drawn that a substantial risk of serious harm exists, and he
must also draw the inference.” Id. at 837.
It is unclear from the allegations whether Plaintiff seeks to hold Engelage liable under the
Eighth Amendment for being deliberately indifferent to a serious medical need of his, for
subjecting Plaintiff to unconstitutional conditions of confinement based on the state of his
chuckhole, or for not following prison procedures for administering medical tests. Regardless,
Plaintiff’s allegations regarding the attempted but refused tuberculosis test do not, as pled, give
rise to a constitutional claim. Plaintiff does not claim he suffers from a serious medical
condition, to the extent he seeks to bring a deliberate indifference to medical needs claim.
Plaintiff also does not state sufficient facts to render the idea that Engelage exposed him
to a substantial risk of serious harm plausible. Plaintiff claims that Engelage conducts tests such
as the test at issue through inmates’ chuckholes, presumably regularly. He does not claim that
inmates have fallen ill as a result. He also refused the test, so he was able to avoid any harm he
may think could have resulted. Further, Plaintiff does not allege what harm he believes he faced
from Engelage’s actions and instead relies on vague statements that the practice was unsafe and
unsanitary. Finally, he fails to provide any facts to show that Engelage was aware that a
substantial risk of serious harm existed. Without more information, this Court will not infer
Engelage was deliberately indifferent toward Plaintiff. Notably, the failure to follow prison
procedures also does not independently give rise to a constitutional claim.
For these reasons, Count 2 will be dismissed without prejudice.

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Count 3 – Due Process
Plaintiff takes issue with a disciplinary ticket Engelage issued him after he refused to
submit to a tuberculosis test. Plaintiff also takes issue with the fact that he was in segregation for
four to six days as a result. 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). 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 claim he was deprived of the procedural protections outlined in Wolff.
Instead, the Complaint suggests he was granted a hearing, and his exhibits show that his ticket
was ultimately expunged. The Court will not infer that Plaintiff was deprived of due process
when the few allegations on the issue tend to show that he received it. Further, Plaintiff’s brief
stint in segregation before this was resolved also fails to support a constitutional claim absent
allegations showing that the conditions Plaintiff faced while in segregation were independently
unconstitutional. For these reasons, Count 3 will be dismissed without prejudice.
Disposition
IT IS HEREBY ORDERED that the Complaint is DISMISSED without prejudice for
failure to state a claim upon which relief may be granted.
IT IS FURTHER ORDERED that COUNTS 2 and 3, and Defendant ENGELAGE, are

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DISMISSED without prejudice for failure to state a claim upon which relief may be granted.
IT IS FURTHER ORDERED that, should he wish to proceed with this case, Plaintiff
shall file a First Amended Complaint, stating any facts which may exist to support a cognizable
§ 1983 claim, within 28 days of the entry of this order (on or before December 27, 2017).
Should Plaintiff fail to file his First Amended Complaint within the allotted time or consistent
with the instructions set forth in this Order, the entire case shall be dismissed with prejudice for
failure to comply with a court order and/or for failure to prosecute his claims. FED. R. APP. P.
41(b). See generally Ladien v. Astrachan, 128 F.3d 1051 (7th Cir. 1997); Johnson v. Kamminga,
34 F.3d 466 (7th Cir. 1994); 28 U.S.C. § 1915(e)(2). Such dismissal shall count as one of
Plaintiff’s three allotted “strikes” within the meaning of 28 U.S.C. § 1915(g) because the
dismissal herein is for failure to state a claim upon which relief may be granted.
Should Plaintiff decide to file a First Amended Complaint, it is strongly recommended
that he use the forms designed for use in this District for such actions. He should label the form,
“First Amended Complaint,” and he should use the case number for this action (i.e. 17-cv-1167NJR). The pleading shall present each claim in a separate count, and each count shall specify, by
name, the defendant alleged to be liable under the count, as well as the actions alleged to have
been taken by that defendant. Plaintiff should attempt to include the facts of his case in
chronological order, inserting each defendant’s name where necessary to identify the actors.
Plaintiff should refrain from filing unnecessary exhibits. Plaintiff should include only related
claims in his new complaint. Claims found to be unrelated to one another will be severed into
new cases, new case numbers will be assigned, and additional filing fees will be assessed.
An amended complaint supersedes and replaces the original complaint, rendering the
original complaint void. See Flannery v. Recording Indus. Ass’n of Am., 354 F.3d 632, 638 n.1

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(7th Cir. 2004). The Court will not accept piecemeal amendments to a complaint. Thus, the First
Amended Complaint must stand on its own, without reference to any previous pleading, and
Plaintiff must re-file any exhibits he wishes the Court to consider along with the First Amended
Complaint. The First Amended Complaint is subject to review pursuant to 28 U.S.C. § 1915A.
No service shall be ordered on any defendant until after the Court completes its § 1915A review
of the First Amended Complaint.
Plaintiff is further ADVISED that his obligation to pay the filing fee for this action was
incurred at the time the action was filed, thus the filing fee of $350.00 remains due and payable,
regardless of whether Plaintiff elects to file a First Amended Complaint. See 28 U.S.C.
§ 1915(b)(1); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998).
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).
In order to assist Plaintiff in preparing his amended complaint, the Clerk is DIRECTED
to mail Plaintiff a blank civil rights complaint form.
IT IS SO ORDERED.
DATED: November 28, 2017
___________________________
NANCY J. ROSENSTENGEL
United States District Judge

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