Podkulski v. Niepert

Filing 5

ORDER DISMISSING CASE, denying 3 MOTION for Leave to Proceed in forma pauperis filed by Steve Podkulski. Plaintiff's obligation to pay the filing fee for this action was incurred at the time he filed the original action, which included this improperly joined claim. The filing fee of $400.00 therefore remains due and payable. Signed by Chief Judge Michael J. Reagan on 3/21/2018. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
STEVE PODKULSKI,
Plaintiff,
vs.
COUNSELOR NIEPERT,
Defendant.

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Case No. 18-cv-246-MJR

MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
This matter is before the Court for a preliminary review of the Complaint (Doc. 2) and
Plaintiff’s motion for leave to proceed in forma pauperis (Doc. 3) pursuant to 28 U.S.C.
§ 1915(e)(2)(B). Plaintiff is a former inmate of Menard Correctional Center. He filed this action
after his release from incarceration, and seeks damages pursuant to 42 U.S.C. § 1983 for the
alleged deprivation of his constitutional rights. (Doc. 2, pp. 5, 12).
This case was originally filed under Podkulski v. Trost, et al., Case No. 17-cv-1284-NJRDGW. Upon initial review of the Complaint, the Court determined that certain parties and
claims were improperly joined. Therefore, the Court severed the claim against Niepert into this
separate action. This claim was described as follows:
Count 5 – Niepert violated Plaintiff’s rights when she refused to respond to Plaintiff’s
grievances.
Factual Allegations and Severance
According to Plaintiff’s Complaint, he uses a wheelchair for mobility because he has a
neurological condition that makes it difficult for him to walk. (Doc. 2, p. 3). When he arrived at
Menard on May 6, 2017, Menard officials took the wheelchair away. Plaintiff was not given his
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prescribed seizure medication. He was not given necessary hygiene supplies to deal with his
bladder and bowel incontinence, and he had nowhere other than the sink in his cell to clean
himself. 1 (Doc. 2, p. 3). He requested to be placed in a single cell because he suffered from
post-traumatic stress disorder and panic attacks, but this request was denied. Plaintiff attempted
suicide after being placed in a double cell. 2 (Doc. 2, pp. 3-4).
Plaintiff filed grievances “on various occasions” with Niepert. (Doc. 2, p. 4). However,
Niepert “deliberately did not file one single grievance that [Plaintiff] filed.” Id. Plaintiff kept a
log of 14 grievances and mailed copies to other prison officials and to his lawyer so that he
would have evidence of his attempts to exhaust his remedies. Id. He claims that Menard has a
pattern, practice, and unwritten policy of “making grievances disappear,” to ensure that inmates
cannot complete the grievance process. (Doc. 2, pp. 4-5).
The Court severed the claim against Niepert pursuant to Federal Rule of Civil Procedure
20, because Plaintiff did not specify the subjects of the grievances he filed or the dates when he
filed them, and because he did not name Niepert in connection with any of his other claims. As a
result, the Complaint does not provide grounds to join the claim against Niepert for failure to
answer grievances with the claims against other defendants for deliberate indifference. (Doc. 1,
pp. 4-6).
Review Under 28 U.S.C. § 1915(e)(2)(B)
Under 28 U.S.C. § 1915(a)(1), an indigent party may file and proceed with a lawsuit
without pre-payment of the filing fee. However, a court can deny an indigent plaintiff leave to
proceed in forma pauperis (“IFP”) or can dismiss a case if the action is clearly frivolous or
malicious, fails to state a claim, or seeks money damages from an immune defendant. 28 U.S.C.
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These claims are proceeding in the original case, No. 17-cv-1284-NJR-DGW.
This claim was severed from the original action and is pending in Case No. 18-cv-214-MJR-SCW.

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§ 1915(e)(2)(B). This section in fact compels dismissal of the action if the Court finds that one
of the listed criteria applies:
Notwithstanding any filing fee, or any portion thereof, that may have been paid,
the court shall dismiss the case at any time if the court determines that . . . (B) the
action or appeal—
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such
relief.
28 U.S.C. § 1915(e)(2)(B) (emphasis added).
The test for determining if an action is frivolous or without merit is whether the plaintiff
can make a rational argument on the law or facts in support of the claim. Neitzke v. Williams,
490 U.S. 319, 325 (1989); Corgain v. Miller, 708 F.2d 1241, 1247 (7th Cir. 1983). An action
fails to state a claim 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). When assessing a petition
to proceed IFP, a district court should inquire into the merits of the petitioner’s claims, and if the
court finds them to be frivolous, it should deny leave to proceed IFP. See Lucien v. Roegner, 682
F.2d 625, 626 (7th Cir. 1982).
The Court is satisfied from Plaintiff’s affidavit (Doc. 3) that he is indigent. However,
after carefully reviewing the claim against Niepert, the Court concludes that the claim in Count 5
is legally frivolous.
Plaintiff does not claim that Niepert (a prison counselor) took away his wheelchair,
deprived him of hygiene supplies or medication, or was otherwise personally involved in any of
the alleged constitutional violations. (Doc. 2, pp. 1, 3-4). His only claim against Niepert is that
Niepert failed to respond to Plaintiff’s grievances which were filed to complain about the
conduct of other officials, and that Niepert’s failure to process his grievances prevented him

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from exhausting his administrative remedies through the prison grievance procedure. This,
however, does not amount to a constitutional violation.
Seventh Circuit precedent is clear that 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) (“a state’s inmate grievance procedures do not give rise to a
liberty interest protected by the Due Process Clause”). 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).
Plaintiff is correct that his efforts to exhaust his administrative remedies by using the
prison grievance process may be relevant in the event that a Defendant raises a challenge to his
ability to maintain a § 1983 suit over the substantive matters raised in the grievances. See 42
U.S.C. § 1997e(a); Pavey v. Conley, 544 F.3d 739, 740 (7th Cir. 2008). If the prison grievance
procedure was unavailable, however, an inmate’s lawsuit may be allowed to proceed.
Administrative remedies become “unavailable” when prison officials fail to respond to inmate
grievances. Lewis v. Washington, 300 F.3d 829, 833 (7th Cir. 2002); see also Kaba v. Stepp, 458
F.3d 678, 684 (7th Cir. 2006). This issue would be addressed in due course in the cases where
Plaintiff’s other claims are proceeding, if raised therein as a defense. The law is clear, however,
that a Defendant’s mishandling of, or failure to address inmate grievances does not support an
independent constitutional claim.
The Complaint does not include any other claims or allegations of misconduct against

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Niepert, aside from the failure to respond to Plaintiff’s grievances. Therefore, the claim against
Niepert is legally frivolous. A claim is legally frivolous if it is based on an “indisputably
meritless legal theory.” Felton v. City of Chicago, 827 F.3d 632, 635 (7th Cir. 2016) (citing
Neitzke v. Williams, 490 U.S. 319, 327-28 (1989)). Legally frivolous claims include claims that
a non-existent legal interest has been infringed. Alston v. DeBruyn, 13 F.3d 1036, 1039 (7th Cir.
1994). This action is therefore subject to dismissal under § 1915(e)(2)(B)(i).
Disposition
For the above reasons, the Court DENIES Plaintiff’s motion for leave to proceed in
forma pauperis (Doc. 3), DISMISSES this case pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) with
prejudice because it is legally frivolous, and DIRECTS the Clerk of Court to enter judgment
accordingly.
Plaintiff’s obligation to pay the filing fee for this action was incurred at the time he filed
the original action, which included this improperly joined claim. The filing fee of $400.00
therefore remains due and payable. See 28 U.S.C. §§ 1915(a)(1); 1915(e)(2); Lucien v. Jockisch,
133 F.3d 464, 467-68 (7th Cir. 1998) (fee remains due even where suit is dismissed); Newlin v.
Helman, 123 F.3d 429, 434 (7th Cir. 1997) (a plaintiff incurs the obligation to pay the filing fee
at the time the action or appeal is commenced).
If Plaintiff wishes to appeal this dismissal, his notice of appeal must be filed with this
Court within thirty days of the entry of judgment. FED. R. APP. P. 4(a)(1)(A). A motion for
leave to appeal in forma pauperis should set forth the issues Plaintiff plans to present on appeal.
See FED. R. APP. P. 24(a)(1)(C). If Plaintiff does choose to appeal, he will be liable for the
$505.00 appellate filing fee irrespective of the outcome of the appeal. See FED. R. APP. P. 3(e);
28 U.S.C. § 1915(e)(2); Ammons v. Gerlinger, 547 F.3d 724, 725-26 (7th Cir. 2008); Sloan v.

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Lesza, 181 F.3d 857, 858-59 (7th Cir. 1999); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir.
1998). A proper and timely motion filed pursuant to Federal Rule of Civil Procedure 59(e) may
toll the 30-day appeal deadline. FED. R. APP. P. 4(a)(4). A Rule 59(e) motion must be filed no
more than twenty-eight (28) days after the entry of the judgment, and this 28-day deadline cannot
be extended.
IT IS SO ORDERED.
DATED: March 21, 2018

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

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