Jett v. Gebke et al

Filing 6

ORDER REFERRING CASE to Magistrate Judge Reona J. Daly. Signed by Judge Staci M. Yandle on 1/31/2018. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KAREEM JETT,
#B-68575,

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Plaintiff,
vs.
LARRY GEBKE,
D. PETERS,
ROBERT MUELLER, and
SUSAN WALKER, and
SARAH JOHNSON,
Defendants.

Case No. 17-CV-1351-SMY

MEMORANDUM AND ORDER

YANDLE, District Judge:
Plaintiff Kareem Jett, an inmate currently housed at Centralia Correctional Center
(“Centralia”), filed this pro se action pursuant to 42 U.S.C. § 1983.

Plaintiff claims that

Defendants have violated his First Amendment rights by confiscating Sports Illustrated
publications on two occasions and mail from Plaintiff’s family on one occasion. Plaintiff seeks
compensatory and punitive damages as well as injunctive and declaratory relief.

Plaintiff

purports to sue all defendants in their official and individual capacities.
This case is now before the Court for a preliminary review of the Complaint (Doc. 1)
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
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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, 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).
The Complaint
On September 7, 2017, Defendant Peters, a correctional officer and member of the
Publications Review Committee, completed a Publication Review Determination Form (“PRD”)
that denied Plaintiff’s Sports Illustrated NFL Preview magazine. (Doc. 1, pp. 2, 9). The denial
was issued because the magazine contained detailed information about teams and players and
could be used to promote gambling. Id. On September 8, 2017, Defendant Mueller, Centralia’s
Warden, concurred in the denial. (Doc. 1, p. 9).
On another occasion in either August or September 2017, 1 Plaintiff received a PRD
stating that his Sports Illustrated College Football Preview magazine had been denied. (Doc. 1,
p. 3).

The publication was denied because the “Publication Review Committee” again

determined that it contained detailed information that could be used to promote gambling. Id.

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According to the Complaint, the confiscation occurred in mid-September. (Doc. 1, p. 3). However, a grievance
attached as an exhibit to the Complaint indicates that the confiscation occurred in August. (Doc. 1, p. 12).

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Plaintiff complained to Defendant Gebke, the Chairman of the Publications Review
Committee, in “response to the ban on his publications.” Id. Plaintiff told Gebke that Sports
Illustrated magazines are available in the prison library.

Id.

Gebke told Plaintiff that he

probably receives too many magazines and should simply read the magazines available in the
prison library. Id. Plaintiff also claims that Centralia allows inmates to receive copies of
publications that contain similar material, including sports encyclopedia books, the ESPN
magazine, and SLAM. Id. Additionally, Plaintiff claims that in October 2017, he was allowed
to take receipt of his copy of several Sports Illustrated magazines involving other sports. Id.
Plaintiff told Gebke about receiving these magazines and Gebke said he was “lucky” to have
received them. (Doc. 1, p. 4).
According to the Complaint, Plaintiff submitted a grievance to Mueller over “this
incident,” but the grievance was denied. (Doc. 1, p. 3). A grievance dated September 13, 2017
is attached to the Complaint as an exhibit. (Doc. 1, p. 12). The grievance was initially denied on
September 15, 2017 and appears to be signed by “Rollins,” a grievance counselor (not a
defendant in this action). The grievance was subsequently denied by Administrative Review
Board member Defendant Sarah Johnson. (Doc. 1, p. 14).
On December 1, 2017, Plaintiff received a denial slip from the mailroom informing him
that pictures of his family were returned because one of the pictures depicted a 6-year-old child
extending two fingers in what Plaintiff describes as “the world-wide symbol recognized for
world peace.” (Doc. 1, p. 4). Apparently, all of the pictures were returned because that single
photo was deemed to contain a gang symbol. Id. Plaintiff complained to Mueller about the
denial “as he made his rounds.” Plaintiff argued that a peace symbol is not a gang symbol. Id.
According to the Complaint, Mueller approved of the denial. Id.

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Preliminary Matter – Dismissal of Susan Walker
Although Plaintiff lists Susan Walker (a grievance counselor) in the caption, he makes no
allegations against her in the body of the Complaint. Plaintiffs are required to associate specific
defendants with specific claims, so that defendants are put on notice of the claims brought
against them. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); FED. R. CIV. P.
8(a)(2). Where a plaintiff has not included a defendant in his statement of the claim, the
defendant cannot be said to be adequately put on notice of which claims in the complaint, if any,
are directed against him. Merely invoking the name of a potential defendant is not sufficient to
state a claim against that individual. See Collins v. Kibort, 143 F.3d 331, 334 (7th Cir. 1998).
Because Plaintiff has not alleged that Susan Walker is “personally responsible for the deprivation
of a constitutional right,” she will be dismissed from this action without prejudice.
Merits Review Under § 1915(A)
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 regarding their merit.
Count 1 –

First Amendment claim against Peters, Mueller, Gebke and Johnson for
ordering, implementing, and/or condoning the confiscation of Plaintiff’s
Sports Illustrated NFL Preview magazine on September 7, 2017 and/or
Sports Illustrated College Preview magazine in September or August
2017.

Count 2 –

First Amendment claim against Mueller for condoning the confiscation of
Plaintiff’s photographs on December 1, 2017.

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Count 1
Two Sports Illustrated publications were withheld from Plaintiff on the ground that they
contained detailed information that could promote gambling. The key issue relevant to Plaintiff's
constitutional claim is whether the publications were rejected based on legitimate penological
interests.
The freedom of speech protected by the First Amendment is not merely freedom to
speak; it is also freedom 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)). While inmates do not lose their constitutional rights upon being
confined in prison, some restrictions on those rights may properly be imposed by prison
authorities. In Turner v. Safley, 482 U.S. 78 (1987), the Supreme Court held that “when a prison
regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably
related to legitimate penological interests.” Id. at 89. On the other hand, “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)). Turner sets forth four factors which courts must
consider in evaluating whether a regulation restricting prisoners' rights is sufficiently reasonably
related to legitimate penological interests to withstand constitutional scrutiny: “(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

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concerns.” Munson v. Gaetz, 673 F.3d 630, 633 (7th Cir. 2012) (citing Turner, 482 U.S. at 8991).
In this case, the withholding of Plaintiff's reading material would run afoul of the First
Amendment if the reason for refusing access to magazines does not survive to analysis under the
Turner reasonableness factors. But additional factual development will be required in order to
determine whether the denial of Plaintiff's publications violated his First Amendment rights.
Accordingly, Plaintiff may proceed on his First Amendment claim for damages against the
defendants he claims ordered, implemented and/or approved of the confiscations: Defendants
Gebke, Peters and Mueller. 2

He may also pursue his claim for injunctive relief against

Defendant Mueller, in his official capacity as warden of Centralia. See Gonzalez v. Feinerman,
663 F.3d 311, 315 (7th Cir. 2011) (holding that in a claim for injunctive relief, the government
official who is responsible for carrying out the requested relief should be named as a defendant
in his or her official capacity). The official capacity claims as to all other defendants will be
dismissed without prejudice.
Plaintiff may not proceed on his claim against Johnson. Johnson, a member of the
Administrative Review Board, allegedly denied one of Plaintiff’s grievances pertaining to the
confiscations. Generally, the denial of a grievance – standing alone – is not enough to violate the
United States Constitution. See, e.g., Owens v. Evans, No. 16-1645, 2017 WL 6728884, at *3
(7th Cir. Dec. 13, 2017) (“Prison officials who simply processed or reviewed inmate grievances
lack personal involvement in the conduct forming the basis of the grievance.”); George v.

2

The Complaint purports to include a claim for “Supervisory Liability.” (Doc. 1, p. 6). The doctrine of respondeat
superior is not applicable to § 1983 actions. Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001) (citations
omitted). Thus, Plaintiff cannot pursue claims against any individual based solely on his or her role as a supervisor.
The Court is allowing Count 1 to proceed as to Gebke and Mueller to the extent that Plaintiff alleges they
implemented or condoned the allegedly wrongful confiscations and not based on either individual’s role as
supervisor.

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Abdullah, 507 F.3d 605, 609 (7th Cir. 2007) (“Ruling against a prisoner on an administrative
complaint does not cause or contribute to the violation.”); Owens v. Hinsley, 635 F.3d 950, 953
(7th Cir. 2011) (“[T]he alleged mishandling of [a prisoner's] grievance by persons who otherwise
did not cause or participate in the underlying conduct states no claim.”). Nonetheless, an official
may be subject to liability if he or she “knows about unconstitutional conduct and facilitates,
approves, condones, or ‘turn[s] a blind eye’ to it.” Perez v. Fenoglio, 792 F.3d 768, 781 (7th Cir.
2015) (citing Vance v. Peters, 97 F.3d 987, 992-93 (7th Cir. 1996).
Here, the claims related to Johnson suggest nothing more than the denial of a grievance
by an individual who was not involved in the underlying alleged constitutional violation. There
is no indication that Johnson is subject to liability under the standard articulated in Perez or
related authority.

As such, Plaintiff’s allegations against Johnson do not state a colorable

constitutional claim and she will be dismissed from this case without prejudice.
Count 2 3
Although “prisoners have protected First Amendment interests in both sending and
receiving mail,” Rowe v. Shake, 196 F.3d 778, 782 (7th Cir. 1999), a prison can confiscate an
inmate's mail if confiscation “is reasonably related to legitimate penological interests.” Turner v.
Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). The same Turner reasonableness
factors discussed under Count 1 apply to this claim. Again, additional facts will be necessary in
order to determine whether the photographs were properly rejected for legitimate penological
reasons. Accordingly, Count 2 shall will receive further review as to Mueller who allegedly
condoned the confiscation.

3

The Complaint includes a section titled “Statement of Claim” and a section titled “Legal Claims.” The allegations
pertaining to Count 2 are included in Plaintiff’s “Statement of Claim” section but are not included in his “Legal
Claims” section. Nonetheless, reading Plaintiff’s Complaint liberally, as the Court must, the Court views the
Complaint as attempting to assert a claim with respect to the confiscated photographs.

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Disposition
IT IS HEREBY ORDERED that WALKER is DISMISSED without prejudice for
failure to state a claim upon which relief can be granted. The Clerk of the Court is DIRECTED
to terminate WALKER as a party in CM/ECF.
IT IS FURTHER ORDERED that COUNT 1 shall receive further review as to
GEBKE, PETERS and MUELLER. COUNT 1 is DISMISSED without prejudice as to
JOHNSON for failure to state a claim upon which relief can be granted. The Clerk of the Court
is DIRECTED to terminate JOHNSON as a party in CM/ECF.
IT IS FURTHER ORDERED that COUNT 2 shall receive further review as to
MUELLER.
IT IS FURTHER ORDERED that Plaintiff may proceed against GEBKE and
PETERS in their individual capacities only. Plaintiff may proceed against MUELLER in his
individual capacity and in his official capacity, as Centralia’s Warden, to the extent he is seeking
injunctive relief.
IT IS FURTHER ORDERED that the Clerk of Court shall prepare for GEBKE,
PETERS and MUELLER: (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 any 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 pay the full costs of formal service, to the extent authorized
by the Federal Rules of Civil Procedure.

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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 Reona J. Daly for further pre-trial proceedings. Further, this entire matter shall be
REFERRED to United States Magistrate Judge Daly 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 Section 1915, Plaintiff will be required to pay the full amount of the costs, despite the fact
that his application to proceed in forma pauperis has been granted.

See 28 U.S.C.

§ 1915(f)(2)(A).
Finally, Plaintiff is ADVISED that he is under a continuing obligation to keep the
Clerk of Court and each opposing party informed of any change in his address; the Court will not
independently investigate his whereabouts. This shall be done in writing and not later than
7 days after a transfer or other change in address occurs. Failure to comply with this order will
cause a delay in the transmission of court documents and may result in dismissal of this action
for want of prosecution. See FED. R. CIV. P. 41(b).

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IT IS SO ORDERED.
DATED: January 31, 2018
s/ STACI M. YANDLE
United States District Court Judge

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