Trainauskas v. Fralicker et al
ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Signed by Judge Nancy J. Rosenstengel on 3/7/2018. (tjk)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
BARTON J. FRALICKER,
KENT E. BROOKMAN,
CHAPLAIN KEIM, and
Case No. 18-CV-193-NJR
MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff Brian Trainauskas, an inmate of the Illinois Department of Corrections
(“IDOC”) currently housed at Stateville Correctional Center, recently filed this action pursuant
to 42 U.S.C. § 1983. Plaintiff is the founder of The Guardians of Othala Kindred, a religious
organization devoted to the practice of Asatru or Odinism.
In 2017, when Plaintiff was housed at Menard Correctional Center (“Menard”), he mailed
two letters that discussed matters pertaining to The Guardians. The letters resulted in disciplinary
charges and sanctions, which were eventually expunged. Plaintiff contends that the disciplinary
charges and related sanctions violated his constitutional rights. In connection with these claims,
Plaintiff sues Barton J. Fralicker (Correctional Officer at Robinson Correctional Center and
author of one of the disputed disciplinary tickets), C/O McCarthy (Intelligence Officer at Menard
and author of one of the disputed disciplinary tickets), Kent E. Brookman (Chairperson of
Adjustment Committee at Menard and individual who oversaw Plaintiff’s disciplinary hearing),
Chaplain Keim (Regional Chaplain for IDOC at Menard), and Jacqueline Lashbrook (Warden at
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
(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
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).
Plaintiff is a follower of the Asatru religion, also known as Odinism. (Doc. 1, p. 9). The
IDOC recognizes Asatru as a religion, and its Chaplaincy Handbook of Religious Beliefs
recognizes certain Asatru holidays as religious holidays. (Doc. 1, p. 10).
In 2013, Plaintiff formed an organization known as The Guardians of Othala Kindred
(“The Guardians”) and published a book on Asatru. (Doc. 1, pp. 9-10). The Guardians is “a
religious organization that emulates the customs, ways, and prayers of the Old Norse
Community.” (Doc. 1, p. 9). The members “pray to the Gods of the Norse Pantheon and keep
sacred several holy days.” Id. According to the Complaint, The Guardians is a nationally
recognized religious organization. (Doc. 1, p. 10). Plaintiff claims he has never attempted to
recruit other inmates to join The Guardians; however, his fiancé and another member of The
Guardians answer letters addressed to the organization inquiring about Asatru and/or The
On February 28, 2017, officials at Menard intercepted a letter Plaintiff attempted to mail
out of the prison. (Doc. 1, p. 11). Officer McCarthy concluded the letter violated certain IDOC
Rules and issued a disciplinary ticket. (Doc. 1-1, pp. 1-2). Plaintiff was charged with violating
DR 205 (Security Threat Group), DR 309 (Business Venture), and DR 310 (Abuse of
Privileges). The disciplinary ticket, in relevant part, provided as follows:
An outgoing letter was discovered, authored by [Plaintiff] and being sent to The
Guardians of Othala, Dan Moreschi, Law Speaker…[Plaintiff] is the founding
member of Guardians of Othala and has recruited multiple offenders to join his
organization. In the contents of the letter, [Plaintiff] is asking advice from
recipient on how to charge dues and fees to the members of the Guardians of
(Doc. 1-1, p. 1). The following day, Plaintiff was placed in disciplinary segregation. (Doc. 1,
On March 2, 2017, officials at Robinson Correctional Center (“Robinson”) intercepted a
letter Plaintiff mailed to an offender housed at Robinson. (Doc. 1, p. 11; Doc. 1-1, pp. 3-4). 1
It appears the letter was “flagged” for investigation by mailroom staff on February 24, 2017. (Doc. 1-1,
p. 3). Fralicker reviewed the letter and issued the disciplinary ticket on March 2, 2017. Id.
Officer Fralicker concluded the letter violated certain IDOC Rules and issued a disciplinary
ticket. Id. Once again, Plaintiff was charged with violating DR 205 (Security Threat Group), DR
309 (Business Venture), and DR 310 (Abuse of Privileges). (Doc. 1-1, p. 3). The letter was
addressed to an inmate at Robinson, indicated it was from Guardians of Othala, and listed an
address in Downers Grove, Illinois. Id. The author of the letter was identified as Facichu Ifreann.
According to the disciplinary ticket, Facichu Ifreann is one of Plaintiff’s known aliases, and
Plaintiff admitted to authoring the letter. Id. The ticket also indicates Plaintiff previously
admitted that he is actively running the Guardians through his common-law wife, using the same
Downers Grove address. Id.
A disciplinary hearing was held on March 7, 2017. (Doc. 1, p. 11; Doc. 1-1, pp. 5-6).
Although not entirely clear, it appears the disciplinary hearing addressed both disciplinary
tickets. 2 According to the Adjustment Committee report, Plaintiff did not request any witnesses,
pleaded not guilty, and provided a written statement. (Doc. 1-1, p. 5). But Plaintiff claims that he
asked to call a witness on his behalf and attempted to present exculpatory evidence. (Doc. 1,
The Adjustment Committee, which was comprised of Brookman and Jason Hart (not a
defendant in this action), found Plaintiff guilty on all charges. (Doc. 1-1, p. 5). The Adjustment
Committee sanctioned Plaintiff with placement in segregation for one year, demotion to “C”
grade for one year, commissary restriction for one year, and contact visit restriction for six
months. Id. Plaintiff notes that, during the hearing, Brookman told Plaintiff that the IDOC did
not recognize Asatru as a religion and indicated he would talk to Chaplain Keim about the
The Adjustment Committee Report references the March 2 disciplinary ticket issued by Officer
Fralicker. (Doc. 1-1, p. 5). But the Adjustment Committee’s decision describes the conduct at issue in the
February 28 disciplinary ticket issued by Officer McCarthy. Id.
matter. (Doc. 1, p. 12).
Plaintiff filed grievances, which were denied at the institutional level. (Doc. 1, p. 12).
Plaintiff also asked Lashbrook to reconsider his sentence. Id. Lashbrook denied the request. Id.
Plaintiff then appealed to the Administrative Review Board. Id. While his appeal was pending,
Plaintiff received letters from Chaplain Keim and Warden Lashbrook acknowledging that the
IDOC recognized Asatru as a religion, discussing which Asatru religious relics could be worn,
and discussing requests for an Asatru religious diet. (Doc. 1, pp. 12-13; Doc. 1-1, pp. 7-8).
Additionally, on March 30, 2017, Plaintiff’s copy of the magazine “Vor Tru,” an Asatru
publication, was confiscated by unspecified mailroom staff. (Doc. 1, p. 13).
On July 3, 2017, Plaintiff received a letter from the Administrative Review Board.
(Doc. 1, p. 14; Doc. 1-1, p. 10). The Administrative Review Board found that Plaintiff’s
procedural due process rights had been violated (finding the disciplinary process failed to
comply with DR 504.30 and DR 504.80) and recommended that the disciplinary report be
expunged. (Doc. 1-1, p. 10). John Baldwin, IDOC’s Acting Director, concurred. Id. Plaintiff was
released from disciplinary segregation on July 11, 2017–after spending approximately four
months and eleven days in disciplinary segregation. Id.
Plaintiff contends that the conditions he endured while in disciplinary segregation
amounted to cruel and unusual punishment. (Doc. 1, pp. 15-16). With respect to the problematic
conditions, Plaintiff describes cells that are smaller than cells in the general population. (Doc. 1,
p. 11). He also claims the cells are “equipped with a box car type door which lets in very little air
or outside light.” Id. Plaintiff also alleges that, due to unspecified conditions, he (1) lost over
twenty pounds in less than four months; (2) developed severe back pain; (3) developed
schizoaffective disorder; and (4) is now classified as seriously mentally ill. (Doc. 1, pp. 13-14).
Finally, Plaintiff claims that, on October 9, 2017, he was placed in disciplinary
segregation “under investigation” by McCarthy without “cause or reason.” (Doc. 1, p. 15).
Exhibits attached to the Complaint reveal that Plaintiff was in administrative (and not
disciplinary) segregation, on investigative status. (Doc. 1-1, p. 13).
DISMISSAL OF CERTAIN DEFENDANTS AND CLAIMS
Plaintiff has named Keim, Menard’s Chaplain, as a defendant. The Court notes, however,
that the Complaint does not include any allegations establishing that Keim was personally
involved in the underlying constitutional violations. Keim is only referenced in connection with a
letter he sent to Plaintiff, acknowledging that Asatru is a recognized religion pursuant to IDOC
regulations. Accordingly, Keim shall be dismissed from the action without prejudice for failure
to state a claim upon which relief may be granted.
As discussed below, Plaintiff also has failed to allege that Lashbrook was personally
involved in any of the alleged constitutional violations. As such, all claims against Lashbrook, in
her individual capacity, shall be dismissed without prejudice for failure to state a claim upon
which relief may be granted.
Official Capacity Claims
With the exception of Lashbrook (addressed below), Plaintiff may not sue any of the
defendants in his or her official capacity. Individuals are not “persons” in their official capacities
under Section 1983. Plaintiff can only bring claims against individuals who were personally
involved in the deprivation of which he complains. See Sanville v. McCaughtry, 266 F.3d 724,
740 (7th Cir. 2001). Thus, to the extent that Plaintiff has attempted to bring claims against
Fralicker, McCarthy, and Brookman, in their official capacities, those claims shall be dismissed.
DIVISION OF COUNTS
Based on the allegations in 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. Any other claim
that is mentioned in the Complaint but not addressed in this Order should be considered
dismissed without prejudice as inadequately pled under the Twombly pleading standard.
Fourteenth Amendment claim for deprivation of a liberty interest
without due process against Brookman for punishing Plaintiff with
segregation following his March 7, 2017 disciplinary hearing.
Claim for violating the Free Exercise Clause of the First
Amendment and the Religious Land Use and Institutionalized
Persons Act (“RLUIPA”) (42 U.S.C. § 2000cc-1(a)) against
Fralicker, Brookman, McCarthy, and Lashbrook, based on the
disciplinary tickets Plaintiff received on February 28, 2017 and
March 2, 2017 and associated sanctions.
Claim against Fralicker and McCarthy for writing an “erroneous”
Eighth Amendment claim against all defendants in connection with
the conditions Plaintiff endured while in disciplinary segregation.
Fourteenth Amendment claim for deprivation of a liberty interest
without due process against McCarthy for placing Plaintiff in
administrative segregation, without reason or explanation, on
October 9, 2017.
First Amendment religious freedom claim against unspecified
mailroom staff for confiscating Plaintiff’s Asatru magazine on
March 30, 2017.
MERITS REVIEW UNDER § 1915(A)
Preliminary Matter–Expungement of Disciplinary Action
In this case, the subject disciplinary action was expunged by the Administrative Review
Board after Plaintiff served a little over four months in disciplinary segregation. The Seventh
Circuit has held that there is “no denial of due process if the error the inmate complains of is
corrected in the administrative appeal process.” Morissette v. Peters, 45 F.3d 1119, 1122
(7th Cir. 1995). This is because “[t]he administrative appeal process is part of the due process
afforded prisoners.” Id. In dicta, however, the Seventh Circuit suggested that this rule may only
apply when the administrative appeal corrects the “procedural error before the punishment has
begun.” Id. at n. 4 (7th Cir.1994) (citing Walker v. Bates, 23 F.3d 652, 657-59 (2d Cir. 1994),
cert. denied, 515 U.S. 1157 (1995) (emphasis added)). The Seventh Circuit went on to discuss
the reasoning in Walker:
The court in Walker concluded that if the prisoner has begun his punishment
before the defect is cured on appeal, the prison board is answerable in damages
absent a successful qualified immunity defense. Once the cause of action accrues,
nothing the state subsequently does can cut off the Section 1983 action. The court
emphasized that prisoner Walker would not have been placed in segregation but
for the invalid decision. The driving force behind this conclusion, however, was
the deprivation of a liberty interest for which compensation must be made.
Id. (internal citations omitted). Ultimately, the Seventh Circuit concluded that the rule announced
in Walker did not apply because, unlike Walker, Morissette did not sustain an “undeserved
The deprivation at issue here appears to be similar to the deprivation at issue in Walker.3
Although dicta, the Seventh Circuit’s discussion of Walker suggests that the Court of Appeals
might apply the same reasoning to this case. Accordingly, the Court will not, at this early stage in
the litigation, dismiss Plaintiff’s due process claim on the ground that the subject disciplinary
action was subsequently expunged during the administrative review process.
When a plaintiff brings an action under Section 1983 for procedural due process
violations, he must show the state deprived him of a constitutionally protected interest in “life,
liberty, or property” without due process of law. Zinermon v. Burch, 494 U.S. 113, 125 (1990).
Therefore, evaluation of Plaintiff’s due process claim involves a two-part inquiry. First, the
Court considers whether a constitutionally protected interest was at stake. If it was, the Court
must examine whether the disciplinary proceeding was conducted in accordance with procedural
due process requirements.
In Walker, a prisoner began serving a 120–day term in solitary confinement following a disciplinary
hearing at which the prisoner’s requests to call witnesses were denied. Walker v. Bates, 23 F.3d 652, 654
(2d Cir. 1994). Although the prisoner’s sentence was overturned on appeal, the prisoner was released after
serving approximately 85 days in solitary confinement. Id. at 654 & 656. The Second Circuit Court of
Appeals found that the administrative appeal did not cure the inmate’s due process violation because the
inmate’s confinement had begun and was based solely upon the disciplinary sentence unlawfully imposed
at his hearing. Id. at 657–59. These facts appear to be similar to the scenario at issue here. It is also worth
noting that Walker was decided in accordance with pre-Sandin case law, meaning the Second Circuit
assumed that 85 days in solitary confinement–standing alone–constituted a protected liberty interest. Had
Walker been decided after Sandin, the case might have turned out differently. In this case, further
development of the record will be necessary to assess whether the conditions Plaintiff experienced during
his relatively short time in segregation are enough to establish that he was deprived of a constitutionally
protected interest. All that being said, the fact that Walker was decided before Sandin does not seem to
alter the rule the Court is concerned with here –whether expunging a sanction after punishment has begun
extinguishes a prisoner’s claim for procedural due process violations associated with the expunged
As to the first inquiry, the Court focuses on Plaintiff’s placement in disciplinary
segregation. 4 The Seventh Circuit has held that “due process claims based on ‘relatively short’
terms of segregation implicate no protected liberty interest, while longer terms may implicate a
liberty interest depending on the conditions of confinement. Younger v. Hulick, 482 F. App’x.
157, 159 (7th Cir. 2012) (citing Marion v. Columbia Corr. Inst., 559 F.3d 693, 697–98 (7th Cir.
2009)). In this case, Plaintiff spent a little over four months in disciplinary segregation. Four
months in segregation, standing alone, does not implicate a protected liberty interest. Beamon v.
Pollard, No. 17-1269, 2018 WL 1001606, at *2 (7th Cir. Feb. 21, 2018) (“135 days in
segregation-absent any atypical conditions related to confinement-does not violate the Fourteenth
Amendment.”). But this period of time is just long enough to trigger an inquiry into the
conditions of Plaintiff’s confinement. See Younger, 482 F. App’x. at 159 (“At 90 days, Plaintiff’s
segregation falls just beyond those terms that we have held do not require inquiry into
With regard to the conditions of Plaintiff’s confinement, 5 the Complaint includes only
two specific allegations. First, Plaintiff claims the “cells are much smaller than general
population cells.” (Doc. 1, p. 11). Second, he alleges the cells are “equipped with a box car type
door which lets in very little air or outside light.” Id. Standing alone, these conditions are likely
Punishments such as demotion in grade, commissary restriction, or transfer to another facility do not
amount to a constitutional deprivation. Thomas v. Ramos, 130 F.3d 754, 762 n.8 (7th Cir. 1997)
(prisoners do not have a protectable liberty interest in demotion to C-grade and loss of commissary
privileges); Id. at 760 (prisoner has no liberty interest in remaining in general population or avoiding
transfer to another prison).
In assessing whether Plaintiff’s disciplinary segregation amounts to a constitutional deprivation, the
Court must determine if the segregation conditions amounted to an “atypical and significant hardship...in
relation to the ordinary course of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995). Here, the “key
comparison is between disciplinary segregation and nondisciplinary segregation rather than between
disciplinary segregation and the general population.” Wagner v. Hanks, 128 F.3d 1173, 1175 (7th Cir.
not sufficient to create a liberty interest. Plaintiff also alleges, however, that conditions in
disciplinary segregation were so bad he (1) lost more than twenty pounds in less than four
months; (2) developed severe low back pain; (3) developed schizoaffective disorder; and (4) is
now classified as seriously mentally ill. (Doc. 1, pp. 13-14).
Considering these allegations, together with the length of the deprivation at issue
(approximately four months and eleven days), the Court cannot conclude that the subject
disciplinary action did not involve a protected liberty interest–at least at this early stage.
Accordingly, dismissal under § 1915A on this ground would be inappropriate at this time. See
Henderson v. Frank, 293 F. App’x 410, 413 (7th Cir. 2008) (dismissal under 1915A, finding
ninety days in disciplinary segregation did not impose an atypical and significant hardship, was
premature where allegations pertaining to conditions of confinement were inconclusive, and
prisoner had not pled himself out of court; case remanded for further factual development).
This brings the Court to the second inquiry: Whether the disciplinary proceeding was
conducted in accordance with procedural due process requirements. Procedural due process in
the prison context requires compliance with the protections outlined in Wolff v. McDonnell,
418 U.S. 539 (1974). Specifically, an inmate is entitled to (1) advanced written notice of the
charge against him; (2) the right to appear before an impartial hearing panel; (3) the right to call
witnesses and present documentary evidence if prison safety allows; and (4) a written statement
of the reasons for the discipline imposed. Wolff, 418 U.S. at 563-69. In addition, the disciplinary
decision must be supported by “some evidence.” Black v. Lane, 22 F.3d 1395, 1402 (7th Cir.
Plaintiff alleges that his discipline was ultimately expunged because of a due process
violation. Exhibits submitted by Plaintiff show that the ticket was in fact expunged and that the
Administrative Review Board did so because it found the process ran afoul of IDOC Rules
504.80 (addressing disciplinary hearing procedures) and 504.30 (addressing the preparation of
disciplinary reports and notice). The protections in these regulations may be broader than those
outlined in Wolff, but the fact that the Administrative Review Board found a due process
violation that may have violated Wolff is sufficient, at the pleading stage, to render Plaintiff’s
claim plausible. Additionally, Plaintiff claims that he sought to have a witness testify on his
behalf. But the hearing report indicates that no witnesses were called. This too suggests a
possible due process violation.
Accordingly, Count 1 shall receive further review as to Brookman, the only defendant
Plaintiff alleges was personally involved in his hearing and associated sanction.
The First Amendment’s Free Exercise Clause prohibits prison officials from imposing a
substantial burden on the free exercise of religion, unless the burden is reasonably related to a
legitimate penological interest. Kaufman v. Pugh, 733 F.3d 692, 696 (7th Cir. 2013). Legitimate
penological interests include the preservation of security in prison, as well as economic concerns.
See Ortiz v. Downey, 561 F.3d 664, 669 (7th Cir. 2009). When these concerns are raised as
justifications by prison officials for actions that restrict the practice of religion, the Court looks at
four factors to determine whether the restriction is constitutional: (1) whether the restriction “is
rationally related to a legitimate and neutral governmental objective”; (2) “whether there are
alternative means of exercising the right that remain open to the inmate”; (3) “what impact an
accommodation of the asserted right will have on guards and other inmates”; and (4) “whether
there are obvious alternatives to the [restriction] that show that it is an exaggerated response to
[penological] concerns.” Id. (citing Lindell v. Frank, 377 F.3d 655, 657 (7th Cir. 2004)). See also
Turner v. Safley, 482 U.S. 78 (1987).
Plaintiff asserts that Fralicker, McCarthy, and Brookman interfered with his right to
freely exercise his religion. His claim is premised on the February 28, 2017 and March 1, 2017
disciplinary tickets, as well as the related sanctions. At this early stage, the Court cannot
determine whether the disciplinary tickets and associated punishment substantially burdened
Plaintiff from freely exercising his religion and, if they did, whether the defendants’ conduct
furthered a legitimate penological interest. Accordingly, Plaintiff has articulated a claim based on
his First Amendment right to freely exercise his religion as to Fralicker, McCarthy, and
Brookman–the defendants who were allegedly personally involved in the constitutional
deprivation. The Complaint does not suggest that Lashbrook was personally involved in issuing
the disputed tickets or sanctions; accordingly, Plaintiff has not stated a viable First Amendment
claim as to Lashbrook in her individual capacity.
Turning to the RLUIPA claim in Count 2, this statute provides that “[n]o government
shall impose a substantial burden on the religious exercise of a person residing in or confined to
an institution...even if the burden results from a rule of general applicability, unless the
government demonstrates that imposition of the burden on that person (1) is in furtherance of a
compelling governmental interest; and (2) is the least restrictive means of furthering that
compelling governmental interest.” 42 U.S.C. § 2000cc-1(a).
Notably, RLUIPA limits damages to injunctive or declaratory relief. See Sossamon v.
Texas, 563 U.S. 277, 287 (2011). Thus, Plaintiff may pursue his RLUIPA claim against an
appropriate official capacity defendant only to the extent that he is seeking injunctive or
declaratory relief. 6 To the extent that Plaintiff is seeking injunctive relief, that claim may be
moot; Plaintiff has been transferred to Stateville Correctional Center, and whether he is
challenging a system-wide policy is unclear. See Maddox v. Love, 655 F.3d 709, 716 (7th
Cir.2011) (transfer may moot a claim for injunctive relief if the transfer means inmate is no
longer subject to the challenged policy); West v. Grams, 607 F. App’x 561, 566 (7th Cir. 2015)
(despite transfer, prisoner’s RLUIPA claim was not moot because prisoner was challenging
system-wide policy and because prison failed to indicate that they had no intention of returning
Plaintiff to original prison). Nonetheless, the Court will allow Plaintiff’s RLUIPA claim to
proceed against Lashbrook, in her official capacity as Menard’s Warden. Lashbrook shall remain
an official capacity defendant with respect to Plaintiff’s RLUIPA claim unless and until the
claim is found to be moot (or otherwise discharged) or, if the claim is not moot, until a more
appropriate official capacity defendant is identified.
Plaintiff claims that Fralicker and McCarthy violated his rights by filing “erroneous”
disciplinary tickets. (Doc. 1, p. 16). The Complaint does not suggest that Fralicker or McCarthy
falsified the disciplinary tickets or otherwise issued an unsubstantiated ticket. Instead, Plaintiff
seems to be disputing whether charges contained in the disciplinary tickets were correct. Both
disciplinary tickets suggest that The Guardians is a Security Threat Group. The February 28
disciplinary ticket also indicates that Plaintiff has a history of pressuring offenders to join The
Guardians. Plaintiff disputes these claims. According to Plaintiff, The Guardians is a nationally
The only injunctive relief mentioned in the Complaint involves a request asking the Court to enjoin Defendants from
retaliating against him. (Doc. 1, p. 18). This is not grounds for dismissing Plaintiff’s claim. See FED. R. CIV. P. 54(c)
(prevailing party should receive any relief to which it is entitled, “even if the party has not demanded that relief in its
pleadings”). See also Jones v. Butler, 663 F. App’x. 468, 470 (7th Cir. 2016) (incomplete demand for relief does not
warrant dismissal or claim).
recognized religious organization, and he has never attempted to recruit other offenders to join
the Guardians. (Doc. 1, pp 10-11). “But whether particular disciplinary charges are correct is a
subject to be resolved by prison disciplinary boards, not by damages actions under § 1983.”
Karow v. Fuchs, 695 F. App’x 966, 967 (7th Cir. 2017). Accordingly, Count 3 shall be dismissed
without prejudice for failure to state a claim upon which relief may be granted.
The Court finds that Plaintiff has not adequately pleaded an independent claim for
conditions of confinement because he has not alleged that any of the named defendants were
personally involved with respect to his conditions of confinement while in disciplinary
segregation. Specifically, he has not alleged that he complained to any of the defendants about
any conditions or that they were otherwise aware of the conditions and failed to act. Plaintiff
claims that Lashbrook is subject to liability because she “maintain[ed] an environment in
disciplinary segregation that must be considered cruel and unusual.” (Doc. 1, p. 16). But an
official cannot be held liable in a civil rights action merely because he or she supervised the
person who violated a prisoner’s constitutional rights—the doctrine of respondeat superior
(supervisory liability) is not applicable to Section 1983 actions. Sanville v. McCaughtry, 266
F.3d 724, 740 (7th Cir. 2001) (citations omitted). Section 1983 creates a cause of action based on
personal liability and predicated upon fault. As such, “to be liable under § 1983, the individual
defendant must have caused or participated in a constitutional deprivation.” Pepper v. Village of
Oak Park, 430 F.3d 805, 810 (7th Cir. 2005) (internal quotations and citations omitted).
Accordingly, Count 4 will be dismissed without prejudice for failure to plead personal
involvement by any of the named defendants.
Plaintiff claims that on October 9, 2017, McCarthy placed him in disciplinary segregation
without cause or explanation. (Doc. 1, p. 15). Exhibits attached to the Complaint reveal,
however, that on this date, Plaintiff was placed in administrative segregation for investigative
purposes. (Doc. 1-1, p. 13). “[I]nmates have no liberty interest in avoiding transfer to
discretionary segregation—that is, segregation imposed for administrative, protective, or
investigative purposes.” Townsend v. Fuchs, 522 F.3d 765 (7th Cir. 2008). This is because
discretionary, or administrative, segregation is not considered “atypical,” but rather an “ordinary
incident of prison life” that prisoners should anticipate during their time in prison. Id. at 771.
Accordingly, Count 5 shall be dismissed without prejudice for failure to state a claim upon which
relief may be granted.
Plaintiff claims that on March 30, 2017, unidentified mailroom staff confiscated his copy
of “Vor Tru,” an Asatru publication. (Doc. 1, p. 13). Plaintiff claims that this violated his First
Amendment right to freely practice his religion. Even assuming that is true, this claim must be
dismissed because it is not associated with any of the named defendants. Instead, it is directed at
unidentified staff. For reasons already discussed, this is insufficient. As such, Count 6 shall be
dismissed without prejudice for failure to state a claim upon which relief may be granted.
Plaintiff also has filed a Motion for Recruitment of Counsel (Doc. 2). The Motion shall
be REFERRED to United States Magistrate Judge Donald G. Wilkerson for a decision.
IT IS HEREBY ORDERED that COUNT 1 shall proceed against BROOKMAN in his
IT IS FURTHER ORDERED that COUNT 2 shall proceed against FRALICKER,
BROOKMAN, and MCCARTHY in their individual capacities. COUNT 2 shall proceed
against LASHBROOK, in her official capacity only, in connection with the RLUIPA claim that
is included in COUNT 2.
IT IS FURTHER ORDERED that COUNTS 3, 4, 5, and 6 are DISMISSED without
prejudice for failure to state a claim upon which relief may be granted.
IT IS FURTHER ORDERED that KEIM is DISMISSED without prejudice for
failure to state a claim upon which relief may be granted. The Clerk of the Court is DIRECTED
to terminate this individual as a party in the Case Management/Electronic Case Filing
With respect to COUNTS 1 and 2, the Clerk of the Court shall prepare for Defendants
BROOKMAN (individual capacity only), FRALICKER (individual capacity only),
MCCARTHY (individual capacity only), and LASHBROOK (official capacity only): (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, his or her 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 Donald G. Wilkerson for further pre-trial proceedings, including a decision on
Plaintiff’s Motion for Recruitment of Counsel (Doc. 2). Further, this entire matter shall be
REFERRED to United States Magistrate Judge Wilkerson 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, even if his application
to proceed in forma pauperis is granted. See 28 U.S.C. § 1915(f)(2)(A).
Plaintiff is ADVISED that at the time application was made under 28 U.S.C. § 1915 for
leave to commence this civil action without being required to prepay fees and costs or give
security for the same, he and his attorney (if one is later appointed) were deemed to have entered
into a stipulation that the recovery, if any, secured in the action shall be paid to the Clerk of the
Court, who shall pay therefrom all unpaid costs taxed against Plaintiff and remit the balance to
Plaintiff. Local Rule 3.1(c)(1).
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: March 7, 2018
NANCY J. ROSENSTENGEL
United States District Judge
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