Thornton v. Lashbrook et al

Filing 10

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. IT IS ORDERED that as to COUNT 1, Plaintiff has neither sought nor been granted leave to proceed in forma pauperis in this action, and the Court will not automatically appoint the Unit ed States Marshal to effect service of process upon Defendants MR./MS. NEW, MS. PRICE, and JOHN DOE (once identified). If Plaintiff desires to request the appointment of the United States Marshal to serve process on these defendants, Plaintiff shal l file a Motion for Service of Process at Government Expense, within 28 days of the date of entry of this order (on or before April 4, 2018). The Clerk of Court is DIRECTED to mail Plaintiff a blank Motion and a copy of the Court's Pro Se Litigant Guide, containing instructions for filing this type of motion. (Action due by 4/4/2018). Signed by Judge Nancy J. Rosenstengel on 3/7/2018. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CHARLES E. THORNTON,
#Y-19115,
Plaintiff,
vs.
JACQUELINE LASHBROOK,
NEW,
JOHN DOE,
and MS. PRICE,
Defendants.

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Case No. 17-cv-01296-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
This matter is now before the Court for preliminary review of the First Amended
Complaint filed by Plaintiff Charles Thornton. (Doc. 7). Plaintiff is currently incarcerated at
Menard Correctional Center (“Menard”). He brings this action pursuant to 42 U.S.C. § 1983 for
alleged deprivations of his constitutional rights at Menard. Id. In the First Amended Complaint,
Plaintiff claims that he was wrongfully denied access to a single issue of “Phat Puffs” magazine
and “Phat Puffs Shotz” photographs in June 2017. (Doc. 7, pp. 15-22). He names Jacqueline
Lashbrook (warden), Mr./Ms. New (publication review officer), John Doe (unknown publication
review officer), and Ms. Price (grievance counselor) in connection with a First Amendment
claim. (Doc. 7, pp. 1-7). Plaintiff seeks declaratory judgment and monetary damages. (Doc. 7,
p. 24). He also seeks a preliminary injunction. 1 (Doc. 8).

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On March 1, 2018, Plaintiff filed a Motion for Temporary Restraining Order (“TRO”) and/or Preliminary
Injunction, in which he requested an order requiring the prison to provide him with notice and an opportunity to
appeal any adverse determination made by Menard’s Publication Review Committee. (Doc. 8). The Court denied
Plaintiff’s request for a TRO and reserved its ruling on his request for a preliminary injunction. (Doc. 9).

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This case is now before the Court for a preliminary review of the First Amended
Complaint (Doc. 7) 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 in the
pro se complaint are to be liberally construed. See Rodriguez v. Plymouth Ambulance Serv., 577
F.3d 816, 821 (7th Cir. 2009).
First Amended Complaint
In the First Amended Complaint, Plaintiff alleges that a single issue of “Phat Puffs”
magazine and “Phat Puffs Shotz” photographs were withheld from him in June 2017. (Doc. 7).
On June 6, 2017, he authorized payment of $32.50 from his prison trust fund account to Sub
Zero Entertainment, Inc., in order to purchase Issue No. 10 of “Phat Puffs” (Spring 2017) and
“Phat Puffs Shotz.” (Doc. 7, pp. 16-25). Plaintiff maintains that the “non-nude” magazine and

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photographs were not obscene or violent in nature. (Doc. 7, pp. 15-17). His request for payment
was approved. (Doc. 7, p. 17).
Menard’s Publication Review Committee nevertheless notified Plaintiff that his request
for the publication was denied. Id. The Committee was comprised of two program and/or
security staff members who were appointed by Warden Lashbrook. (Doc. 7, p. 3). These
individuals included Ms. New and John Doe. (Doc. 7, pp. 3-7). On June 30, 2017, the Committee
notified Plaintiff that the publication was on the “disapproved list” because it contained images
considered to be sexually explicit or obscene under 720 ILCS § 5/11-20(b). 2 Id. The Committee
further explained that the publications posed a threat to the “security, good order, or discipline
[in] its facilities.” (Doc. 7, p. 18).
Plaintiff filed a grievance the same day. Id. In it, he challenged the Committee’s
determination. Id. He argued that the publication contained no sexually explicit materials and
was not obscene. Id. In response, Plaintiff was directed to review the list of disapproved
publications in the law library. (Doc. 7, p. 19).
When Plaintiff requested the list of disapproved publications in July 2017, he was given a
copy of the 2016 list. (Doc. 7, pp. 19, 26-34). Plaintiff asked Counselor Price for an updated list
on July 12 and 15, 2017. (Doc. 7, pp. 20, 26-34). She denied his request and directed him to
review the list that was available at the law library. Id. Plaintiff submitted another grievance to

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Illinois law defines “obscene” as “[a]ny material or performance [that]: (1) the average person, applying
contemporary adult community standards, would find that, taken as a whole, . . . appeals to the prurient
interest; and (2) the average person, applying contemporary adult community standards, would find . . .
depicts or describes, in a patently offensive way, ultimate sexual acts or sadomasochistic sexual acts,
whether normal or perverted, actual or simulated, or masturbation, excretory functions or lewd exhibition
of the genitals; and (3) taken as a whole, . . . lacks serious literary, artistic, political or scientific value.”
See 720 ILCS § 5/11-20.

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inform Counselor Price that the law library’s list was outdated, and she responded by stating that
the prison’s publication “policy is being followed.” (Doc. 7, pp. 20-22).
Plaintiff maintains that the decision to deny his request for “Phat Puffs” and “Phat Puffs
Shotz” in June 2017 was arbitrary. (Doc. 7, pp. 21-22, 26-34). According to the First Amended
Complaint, the decision was not based on an updated list of disapproved items or an
individualized determination that Issue No. 10 of “Phat Puffs” (Spring 2017) or the “Phat Puffs
Shotz” photographs were sexually explicit or obscene under 720 ILCS § 5/11-20(b). Id. Plaintiff
further alleges that the materials contained no obscene images, violent imagery, or gang-related
information. Id. The denial of “Phat Puffs” and “Phat Puffs Shotz” thus infringed upon Plaintiff’s
rights under the First Amendment. Id.
Merits Review Under 28 U.S.C. § 1915A
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 has
organized the claim in Plaintiff’s pro se First Amended Complaint into a single count:
Count 1 -

First Amendment claim against Defendants for denying Plaintiff’s
request for a copy of Issue No. 10 of “Phat Puffs” (Spring 2017)
and “Phat Puffs Shotz.”

The parties and the Court will use this designation in all future pleadings and orders, unless
otherwise directed by a judicial officer of this Court. The designation of this claim does not
constitute an opinion regarding its merit. Any claims not identified above but encompassed by
the allegations in the First Amended Complaint are considered dismissed without prejudice
from this action.

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Discussion
The freedom of speech under the First Amendment includes the freedom to speak and to
read. King v. Fed. Bureau of Prisons, 415 F.3d 634, 638-39 (7th Cir. 2005) (citing Stanley v.
Georgia, 394 U.S. 557, 564 (1969); Lamont v. Postmaster General, 381 U.S. 301, 306-07
(1965)). Although inmates do not lose these rights when they are incarcerated, prison officials
may impose some restrictions on them. Turner v. Safley, 482 U.S. 78 (1987). Officials have
“great latitude” in limiting a prisoner’s reading materials. Payton v. Cannon, 806 F.3d 1109,
1110 (7th Cir. 2015) (quoting Mays v. Springborn, 575 F.3d 643, 649 (7th Cir. 2009)). Even so,
they do not have unfettered discretion. Payton, 806 F.3d at 1110.
When “a prison regulation impinges on inmates’ constitutional rights, the regulation is
valid if it is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. at
89. However, “the arbitrary denial of access to published materials violates an inmate’s first
amendment rights.” Antonelli v. Sheahan, 81 F.3d 1422, 1433 (7th Cir. 1996) (quoting Martin v.
Tyson, 845 F.2d 1451, 1454 (7th Cir.) (per curiam), cert. denied, 488 U.S. 863 (1988)). The
Supreme Court outlined four factors that courts must consider when evaluating whether a
regulation that restricts inmates’ rights is reasonably related to a legitimate penological interest
sufficient to withstand constitutional scrutiny. Turner, 482 U.S. at 89-91. These factors include:
“(1) the validity and rationality of the connection between a legitimate and neutral government
objective and the restriction; (2) whether the prison leaves open ‘alternative means of exercising’
the restricted right; (3) the restriction’s bearing on the guards, other inmates, and the allocation
of prison resources; and (4) the existence of alternatives suggesting that the prison exaggerates
its concerns.” Munson v. Gaetz, 673 F.3d 630, 633 (7th Cir. 2012) (citing Turner, 482 U.S. at 8991).

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Whether Menard’s Publication Review Committee properly rejected “Phat Puffs” and
“Phat Puffs Shotz” based on legitimate penological concerns remains to be seen. The
Committee’s decision to withhold the materials violates the First Amendment, if the reasons for
doing so run afoul of the Turner reasonableness factors. Plaintiff insists that the Committee’s
decision was completely arbitrary because it was not based on an updated list of disapproved
publications or individualized screening of the materials at issue. (Doc. 7). Although further
factual development of this claim is necessary, the Court finds that Count 1 merits further
consideration against Defendants New, Doe, and Price, all of whom were personally involved in
the denial of Plaintiff’s access to the publications.
Plaintiff also seeks to impose liability on Warden Lashbrook based on her supervisory
role. (Doc. 7, pp. 3-4). According to the First Amended Complaint, the warden oversees
operations at the prison and appoints members of the staff to the Committee. (Doc. 7, pp. 3-4,
16-22). But Plaintiff cannot proceed with a claim against the warden based only on a theory of
supervisory liability. The doctrine of respondeat superior is not applicable to Section 1983
actions. Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001). A defendant must be
“personally responsible for the deprivation of a constitutional right” in order to be held liable in a
civil rights case. Id. The allegations suggest no involvement by the warden in the decision to ban
this particular publication or to withhold it from Plaintiff. (Doc. 7, pp. 16-22, 26-34). No
allegations suggest that the warden was even aware that the Committee rejected Plaintiff’s
request for “Phat Puffs” and “Phat Puffs Shotz.” Id.
If the warden was aware of or approved the Committee’s system for screening published
materials and/or condoned the Committee’s conduct, Warden Lashbrook may be liable for a
violation of Plaintiff’s rights. Where a defendant directs the conduct or knowingly consents to

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the conduct that caused a constitutional violation, that defendant has sufficient personal
involvement in the violation, even if he or she did not participate directly in the violation. Chavez
v. Ill. State Police, 251 F.3d 612, 652 (7th Cir. 2001) (“The supervisors must know about the
conduct and facilitate it, approve it, condone it, or turn a blind eye for fear of what they might
see.”). Absent allegations to this effect in the First Amended Complaint, the individual capacity
claim against Warden Lashbrook in Count 1 fails and shall be dismissed without prejudice.
Identification of Unknown Defendant
Plaintiff shall be allowed to proceed with Count 1 against Defendant John Doe, the
unknown member of Menard’s Publication Review Committee. This defendant must be
identified with particularity, however, before service of the First Amended Complaint can be
made on him. Where a prisoner’s complaint states specific allegations describing conduct of
individual prison staff members sufficient to raise a constitutional claim, but the names of those
defendants are not known, the prisoner should have the opportunity to engage in limited
discovery to ascertain the identity of those defendants. Rodriguez v. Plymouth Ambulance Serv.,
577 F.3d 816, 832 (7th Cir. 2009). In this case, Warden Jacqueline Lashbrook (official capacity
only) shall be responsible for responding to discovery aimed at identifying John Doe. Guidelines
for discovery will be set by the United States Magistrate Judge. Once the name of this unknown
defendant is discovered, Plaintiff shall file a motion to substitute the newly identified defendant
in place of the generic designations in the case caption and throughout the First Amended
Complaint.
Pending Motion
Plaintiff’s Motion for Preliminary Injunction (Doc. 8) shall be REFERRED to United
States Magistrate Judge Donald G. Wilkerson.

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Disposition
IT IS HEREBY ORDERED that COUNT 1 survives screening and is subject to further
review against Defendants MR./MS. NEW, MS. PRICE, and JOHN DOE.
IT IS ORDERED that COUNT 1 is DISMISSED without prejudice against Defendant
JACQUELINE LASHBROOK (individual capacity only) because the First Amended
Complaint fails to state a claim for relief against this defendant. Defendant Lashbrook shall
remain named as a defendant in her official capacity only, however, based on Plaintiff’s request
for injunctive relief. See Gonzalez v. Feinerman, 663 F.3d 311, 315 (7th Cir. 2011). Warden
Lashbrook is responsible for carrying out any injunctive relief that is ordered and for responding
to discovery aimed at identifying the unknown defendant.
IT IS ORDERED that as to COUNT 1, Plaintiff has neither sought nor been granted
leave to proceed in forma pauperis in this action, and the Court will not automatically appoint
the United States Marshal to effect service of process upon Defendants MR./MS. NEW, MS.
PRICE, and JOHN DOE (once identified). If Plaintiff desires to request the appointment of the
United States Marshal to serve process on these defendants, Plaintiff shall file a Motion for
Service of Process at Government Expense, within 28 days of the date of entry of this order (on
or before April 4, 2018). The Clerk of Court is DIRECTED to mail Plaintiff a blank Motion and
a copy of the Court’s Pro Se Litigant Guide, containing instructions for filing this type of motion.
If Plaintiff does not timely file a Motion for Service of Process at Government Expense,
it shall be Plaintiff’s responsibility to have Defendants MR./MS. NEW, MS. PRICE, and
JOHN DOE (once identified) served with a summons and copy of the First Amended Complaint
pursuant to Federal Rule of Civil Procedure 4. Plaintiff is advised that only a non-party may
serve a summons. See FED. R. CIV. P. 4(c)(2).

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If Plaintiff requests the appointment of the United States Marshal, the Clerk of Court
shall prepare a summons and copies of the First Amended Complaint and this Memorandum and
Order for each defendant, and shall forward the same to the United States Marshal for service. If
Plaintiff does not file a Motion for Service of Process at Government Expense within 28 days as
ordered, the Clerk shall then prepare a summons for each defendant, and shall forward the
summonses and sufficient copies of the First Amended Complaint and this Memorandum and
Order to Plaintiff so that he may have defendants served.
Plaintiff is ORDERED to serve upon defendants or, if an appearance has been entered by
counsel, upon that attorney, a copy of every pleading or other document submitted for
consideration by this Court. Plaintiff shall include with the original paper to be filed a certificate
stating the date that a true and correct copy of the document was mailed to each defendant or
defendant’s counsel. Any paper received by a district judge or magistrate judge which has not
been filed with the Clerk or which fails to include a certificate of service will be disregarded by
the Court.
IT IS FURTHER ORDERED that, with respect to a defendant who no longer can be
found at the work address provided by Plaintiff, if the United States Marshal is appointed to
serve process pursuant to a motion by Plaintiff, the employer shall furnish the United States
Marshal with the defendant’s current work address, or, if not known, the defendant’s last-known
address. This information shall be used only for effecting service of process. Any documentation
of the address shall be retained only by the Marshal. Address information shall not be maintained
in the court file or disclosed by the Marshal.
Service cannot be made on Defendant JOHN DOE (Publication Review Committee
Member) until such time as Plaintiff has identified him by name in a properly filed motion for

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substitution of parties.
Defendants are ORDERED to timely file an appropriate responsive pleading to the First
Amended Complaint and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g).
Pursuant to Local Rule 72.1(a)(2), this action is REFERRED to United States Magistrate
Judge Donald G. Wilkerson for further pre-trial proceedings, including a plan for discovery
aimed at identifying the unknown defendant (“John Doe”) and resolution of Plaintiff’s Motion
for Preliminary Injunction (Doc. 8).
Further, this entire matter is REFERRED to United States Magistrate Judge Wilkerson
for disposition, as contemplated by Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), should all the
parties consent to such a referral.
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: March 7, 2018
___________________________
NANCY J. ROSENSTENGEL
United States District Judge

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