Norfleet v. Miller-Pickering et al

Filing 29

ORDER DISMISSING CASE with prejudice for asserting legally frivolous claims and otherwise failing to state a claim. Plaintiff's pending motions are DENIED as MOOT. (Doc. 21)(Doc. 22)(Doc. 24)(Doc. 25). Plaintiff is assessed a strike pursuant to 28 U.S.C. 1915(g). Signed by Judge David R. Herndon on 7/11/2018. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MARC NORFLEET,
Plaintiff,
vs.
KAREN MILLER-PICKERING,
JOHNSON,
SHERRY BENTON,
BILLY ROLLA,
DANA PRUSACKI-NEWTON,
SHALENE HALE,
DEAN FLATT,
TYNEER BUTLER-WINTERS,
TEJEDA,
LISA QUALLS,
GLADYSE C. TAYLOR,
JOHN BALDWIN,
ILLINOIS DEPARTMENT OF
CORRECTIONS,
THOMAS SPILLER, and
JACQUELINE LASHBROOK

Case No. 18−cv–0564−DRH

Defendants.
MEMORANDUM AND ORDER
HERNDON, District Judge:
Plaintiff Marc Norfleet, an inmate in Menard Correctional Center, brings
this action for deprivations of his constitutional rights pursuant to 42 U.S.C.
§ 1983 for events that happened at Pinckneyville Correctional Center and
Stateville Correctional Center.

Plaintiff requests injunctive relief, costs & fees,

declaratory relief, and damages.

This case is now before the Court for a

1

preliminary review of the Third Amended Complaint 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 of the pro se complaint are to be liberally construed. See
Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).
Upon careful review of the Third Amended Complaint, the Court finds it
appropriate to exercise its authority under § 1915A; this action is subject to
summary dismissal.

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The Third Amended Complaint
Plaintiff originally filed this suit in the Northern District of Illinois on
November 3, 2017. (Doc. 1). The original complaint was stricken for failure to
conform to federal notice pleading requirements.

(Doc. 7).

Plaintiff filed an

Amended Complaint on January 18, 2018. (Doc. 12). The Northern District then
transferred the case here on March 12, 2018. (Doc. 14). Plaintiff submitted 2
proposed amended complaints in a short period of time, and the Court caused
the most recent one to be filed as the Third Amended Complaint on July 10,
2018. (Doc. 26) (Doc. 27).
Plaintiff alleges that Defendants caused him to lose the case Norfleet v.
Shah, No. 14-cv-1408-JPG-PMF (“14-1408”) after Judge Gilbert issued an order
requiring prison officials to show cause regarding Plaintiff’s access to legal
supplies in case No. 15-cv-0160-JPG-SCW (“15-160”). (Doc. 27, p. 8).
Specifically, Plaintiff alleges that Defendants IDOC, Prusacki-Newton,
Spiller, Taylor, Baldwin, and Benton enforced a policy that arbitrarily deprived
Plaintiff of adequate legal supplies after he became indigent. (Doc. 27, pp. 8-9).
The lack of legal supplies caused Plaintiff to lose 14-1408 and the appeal of that
case, Norfleet v. Shah, 15-2401 (7th Cir.). (Doc. 17, p. 9). Plaintiff alleges that
Defendants took this retaliatory step against him after Judge Gilbert entered an
order directing their subordinate employees to respond on April 13, 2016. Id.
(15-160, Doc. 14). Plaintiff received a notice that his appeal in 15-2401 had been
dismissed by the Seventh Circuit on November 18, 2015. (Doc. 27, p. 9). He

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immediately requested an envelope from Prusacki-Newton, Rolla, and Spiller.
(Doc. 27, pp. 9, 11). Plaintiff’s request was denied pursuant to a policy of only
providing 2 envelopes per month to indigent inmates promulgated by IDOC,
Baldwin, Taylor, Benton, Qualls, and Spiller. Id. Plaintiff then crafted his own
envelope, but Hale refused to mail it out on November 21, 2015, further depriving
Plaintiff of access to the courts. (Doc. 27, p. 12). Hale falsely claimed that the
U.S. Postal Service does not permit re-used envelopes.

Id.

Hale later

contradicted herself and told Plaintiff that it was IDOC, Baldwin, Taylor, Benton,
Qualls, and by extensions, Spiller and the IDOC’s policy to not permit inmates to
re-use envelopes. Id.
Plaintiff was transferred to Stateville on December 1, 2015, but he alleges
that Prusacki-Newton and Spiller’s refusal to give him an envelope cost him 12
out of 14 days to respond to the mandate, and effectively caused the loss of both
the appeal and the case in the district court. (Doc. 27, pp. 9, 11). Plaintiff alleges
that other inmates, like William Malone, were not treated in this manner. (Doc.
27, p. 9).Plaintiff was also unable to mail grievances to the ARB. Id. While at
Stateville, Plaintiff alleges that Johnson and Tejeda denied him access to adequate
legal research due to IDOC, Baldwin, Benton, and Qualls' intentional refusal to
allow Stateville to have an adequate law library. (Doc. 27, p. 11).
Plaintiff alleges that IDOC, Baldwin, Benton, Spiller, and Miller-Pickering
denied Plaintiff his First, Fifth, and Fourteenth Amendment rights in retaliation
by taking his entire state stipend and applying it to Plaintiff’s debt for legal copies

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and legal postage fees since 2010. (Doc. 27, p. 10). Plaintiff alleges that they only
confiscate his stipend, and not any other inmates’.

Id.

This leaves Plaintiff

without funds to shop in the commissary for stationary, and he needs stationary
to litigate. Id. Plaintiff again points to Malone as an example of an inmate treated
differently than him, and alleges that Malone also owes extensive legal copy,
postage, and court fees. Id. Plaintiff alleges that this conduct also contributed the
loss of 15-2401 and 14-1408. Id. Hale prevented Plaintiff from paying the partial
filing fee in 15-2401. Id.
Plaintiff alleges that IDOC, Baldwin, Taylor, Benton, and Flatt deprived
Plaintiff of his First and Fourteenth Amendment rights by making the institutional
grievance process unavailable to Plaintiff.

(Doc. 27, p. 13).

Specifically, Flatt

would ignore the facts of Plaintiff’s grievances so that they would be denied later
by the Administrative Review Board (“ARB”). (Doc. 27, p. 14).
Plaintiff alleges that the policies of denying his grievances and depriving
him of adequate legal supplies continued into 2017. (Doc. 27, p. 15).
Finally, Plaintiff alleges that IDOC, Prusacki-Newton, Spiller, Taylor,
Baldwin, Benton, Qualls, Rolla, Hale, Miller-Pickering, Flatt, Tejeda, Johnson,
and Butler-Winters inflicted cruel and unusual punishment on Plaintiff. (Doc. 27,
p. 25). Plaintiff alleges that the Attorney General’s office has never made his full
medical records available to him, and that he will need those records to prove the
specific dates he suffered from physical and emotional pain caused by
Defendants’ actions.

Id.

Plaintiff also alleges that as a direct consequence of

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losing Norfleet v. Shah, Shah was permitted to continue intentionally depriving
Plaintiff of medical care for his disability. Id.
Some of the facts at issue in this lawsuit involve public records of past
lawsuits filed within this Court and the Seventh Circuit. Courts are permitted to
take judicial notice of matters of public record. General Elec. Capital Corp., v.
Lease Resolution Corp. 128 F.3d 1074, 1081 (7th Cir. 1997); see also Ennenga
v. Starns, 677 F.3d 766 (7th Cir. 2012). The facts must be both indisputable and
either known within the jurisdiction of the trial court or capable of ready
determination from sources of unquestioned accuracy. Id. Court documents are
public records of which the Court can take judicial notice.

Brown v. Roal-

Warner, No. 11-cv-479-DRH, 2012 WL 591402 at *1, n. 1 (S.D. Ill. Feb. 22,
2012).
The Court has found public records that are relevant to its discussion of
the Third Amended Complaint.

Norfleet v. Shah was litigated in this district

court. Plaintiff filed that case on December 22, 2014. (14-1408, Doc. 1). On
June 11, 2015, the Court dismissed the Second Amended Complaint without
prejudice for failure to state a claim. (14-1408, Doc. 47). The Court gave Plaintiff
until September 4, 2015 to file an amended complaint. (14-1408, Doc. 50). In
lieu of submitting an amended complaint, Plaintiff filed a Notice of Appeal on July
1, 2015. (14-1408, Doc. 52). The Court denied Plaintiff leave to proceed IFP on
appeal because it found its order dismissing the amended complaint non-final
because it contemplated submitting another amended complaint. (14-1408, Doc.

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61, p. 1).

Thus, the appeal was frivolous because Plaintiff appealed a non-

appealable order.

Id.

The Court also found the appeal so frivolous that it

justified disregarding the notice of appeal. (14-1408, Doc. 61, p. 2). The Court
therefore retained jurisdiction over the case and informed Plaintiff of its intention
to continue to count his time to file an amended pleading. Id. Plaintiff filed a
Second Amended Complaint, (14-1408, Doc. 70), and although the magistrate
submitted a Report and Recommendation recommending that the Second
Amended Complaint also be dismissed for failure to state a claim, (14-1408, Doc.
73), Plaintiff filed a Motion for Voluntary Dismissal before the Court could act on
the Report and Recommendation. (14-1408, Doc. 74). The Court dismissed 141408 pursuant to Plaintiff’s 2 motions requesting voluntary dismissal with
prejudice on September 1, 2015. (14-1408, Doc. 75).
As for Plaintiff’s appeal, the Seventh Circuit denied Plaintiff’s renewed
motion to proceed IFP on September 30, 2015, and directed Plaintiff to submit
the $505 filing fee. (15-2401, Doc. 17). Plaintiff filed a motion pursuant to Fed.
R. Civ. P. 59(e) regarding his IFP status, which the appellate court denied on
October 23, 2015.

(15-2401, Doc. 22, Doc. 24).

Plaintiff then filed another

motion asking to proceed without prepaying fees or costs due to new
circumstances. (15-2401, Doc. 25). The Seventh Circuit denied the request once
more, noted that it had already denied Plaintiff’s motion to reconsider, and
warned Plaintiff that “future repetitious motions to reconsider will be rejected by
the clerk of court.” (15-2401, Doc. 26). The case was then dismissed for failure

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to pay the required docketing fee on November 18, 2015. (15-2401, Doc. 27).
Since filing this action, Plaintiff moved the appellate court once more to recall the
mandate on the basis of inability to pay the fees and because of alleged
interference with his access to legal supplies. (15-2401, Doc. 28). The Seventh
Circuit denied the motion the same day it was filed without explanation. (152401, Doc. 29).
Discussion
Based on the allegations of the Third Amended Complaint, the Court finds
it convenient to divide the pro se action into 8 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.

None of Plaintiff’s claims survive

threshold review:
Count 1 – Defendants IDOC, Prusacki-Newton, Spiller, Taylor,
Baldwin and Benton retaliated against Plaintiff for securing a show
cause order in Case No. 15-160 by enforcing a policy of providing
Plaintiff with only 2 envelopes a month, causing the loss of 14-1408
and 15-2401 in violation of the First Amendment and/or Fourteenth
Amendment;
Count 2 – Defendants IDOC, Baldwin, Benton, Spiller, and MillerPickering deprived Plaintiff of his First Amendment, Fifth
Amendment, and/or Fourteenth Amendment rights when they
confiscated his prison stipend to pay off his outstanding legal
expenses, despite knowing that he was indigent and needed more
legal supplies;
Count 3 – Defendants IDOC, Baldwin, Taylor, Benton, Qualls,
Spiller, Prusacki-Newton, Rolla, Hale, Miller-Pickering, and Flatt
deprived Plaintiff of his First Amendment and/or Fourteenth
Amendment access to courts rights when they refused to provide him
with an envelope to allow him to mail a motion to the appellate court

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and/or failed to submit an initial partial filing fee to the appellate
court, causing the loss of 14-1408 and 15-2401;
Count 4 – Defendants Tejeda, Johnson, and Butler-Winters deprived
Plaintiff of his First Amendment and/or Fourteenth Amendment right
to access to courts when they denied Plaintiff an adequate law
library, thus causing the loss of 14-1408 and 15-2401;
Count 5 – IDOC, Baldwin, Taylor, Benton, and Flatt deprived
Plaintiff of his First Amendment and/or Fourteenth Amendment
rights when they refused to respond to grievances and/or condoned
the refusal of others to respond to grievances, thus depriving Plaintiff
of his access to the courts;
Count 6 – IDOC, Prusacki-Newton, Spiller, Taylor, Baldwin, Benton,
Qualls, Rolla, Hale, Miller-Pickering, Flatt, Tejeda, Johnson, and
Butler-Williams inflicted cruel and unusual punishment on Plaintiff,
in violation of the Eighth Amendment, when they caused the loss of
14-1408 and 15-2401, thus allowing Dr. Shah to continue to deprive
Plaintiff of adequate medical care;
Count 7 – Defendants discriminated against Plaintiff in violation of
the Fourteenth Amendment’s Equal Protection clause by singling him
out for disparate treatment, in comparison to William Malone;
Count 8 – Defendants violated Plaintiff’s substantive due process
rights under the Fourteenth Amendment.
As an initial matter, Plaintiff’s inclusion of the Illinois Department of
Corrections (“IDOC”) as a defendant in all counts is improper. Plaintiff cannot
maintain his suit against the Defendant Illinois Department of Corrections,
because it is a state government agency.

The Supreme Court has held that

“neither a State nor its officials acting in their official capacities are ‘persons’
under § 1983.” Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). See
also Wynn v. Southward, 251 F.3d 588, 592 (7th Cir. 2001) (Eleventh
Amendment bars suits against states in federal court for money damages);
Billman v. Ind. Dep’t of Corr., 56 F.3d 785, 788 (7th Cir. 1995) (state
9

Department of Corrections is immune from suit by virtue of Eleventh
Amendment); Hughes v. Joliet Corr. Ctr., 931 F.2d 425, 427 (7th Cir. 1991)
(same); Santiago v. Lane, 894 F.2d 218, 220 n. 3 (7th Cir. 1990) (same).
Therefore IDOC will be dismissed with prejudice from this case.
Plaintiff’s first theory of recovery is that Defendants retaliated against him
for securing a show cause order in Case 15-160 by refusing to provide him with
an envelope. To succeed on a First Amendment retaliation claim, a plaintiff must
prove 1) that he engaged in conduct protected by the First Amendment; 2) that he
suffered a deprivation that would likely deter First Amendment activity in the
future; and 3) that the protected conduct was a “motivating factor” for taking the
retaliatory action. Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009).
Plaintiff alleges that the conduct of April 13, 2015 caused Defendants to
retaliate 7 months later, starting on November 18, 2015.

Putting aside the

question of whether an order written by Judge Gilbert could be construed as
Plaintiff’s protected speech; Plaintiff’s allegations make it implausible that the
alleged protected conduct was the motivating factor for the retaliation because it is
too remote in time. Moser v. Ind. Dep’t of Corr., 406 F.3d 895, 905 (7th Cir.
2005) (one-month period between protected activity and adverse action does not
“create a triable issue”). Moreover, the deprivation of a single envelope is not the
kind of act that would deter a person of ordinary firmness from engaging in
protected activity. Accordingly, the Court will dismiss Count 1 with prejudice for
failure to state a claim.

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Count 2 is legally frivolous. Plaintiff has alleged that his state funds have
been encumbered to pay his legal expenses, leaving him without funds to buy
more legal supplies.

This procedure has been upheld in multiple decisions.

Owens v. Evans, 878 F.3d 559, 563 (7th Cir. 2017) (“The judge appropriately
dismissed Owen’s claim that the prison unlawfully confiscated his trust account
funds to recover expenses that had been loaned to Owens.”); Gaines v. Lane, 790
F.2d 1299, 1308 (7th Cir. 1986); see also Eason v. Nicholas, 847 F.Supp. 109,
113 (C.D. Ill. 1994) (“The deferred deduction of legal costs [as provided by Illinois
statute] advanced by the state does not violate the Constitution.”). Accordingly,
Count 2 will be dismissed with prejudice.
The gravamen of Plaintiff’s Third Amended Complaint is Counts 3 and 41 –
that Plaintiff was deprived of his access to the courts when defendants failed to
provide him with an envelope to mail his motion to recall the mandate of the 7th
Circuit, failed to leave him with sufficient funds to pay the appellate fee, and failed
to provide him with an adequate law library.
The Seventh Circuit uses a two-part test to decide if prison administrators
have violated the right of access to the courts. Lehn v. Holmes, 364 F.3d 862,
868 (7th Cir. 2004). First, the prisoner must show that prison officials interfered
with his legal materials. Devbrow v. Gallegos, 735 F.3d 584, 587 (7th Cir. 2013)

1

Count 4 addresses the conduct of employees of Stateville Correctional Center, and it is debatable
whether venue in this district is proper as to claims against Stateville employees. Judge Shah
justified transferring this case to this district despite their presence by noting that Plaintiff had
failed to state a claim against the Stateville employees, although he did not dismiss them or sever
the claims. As this Court does not have the authority to overrule another district judge, it will
proceed as if venue is proper.

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(citing Lewis v. Casey, 518 U.S. 343, 348 (1996)). Second, he must be able to
show “some quantum of detriment caused by the challenged conduct of state
officials resulting in the interruption and/or delay of plaintiff’s pending or
contemplated litigation.” Alston v. DeBruyn, 13 F.3d 1036, 1041 (7th Cir. 1994);
see also Lehn, 364 F. 3d at 868. That means that a detriment must exist, a
detriment resulting from illegal conduct that affects litigation.
To state a claim, a plaintiff must explain “the connection between the
alleged denial of access to legal materials and an inability to pursue a legitimate
challenge to a conviction, sentence, or prison conditions,” Ortiz v. Downey, 561
F.3d 664, 671 (7th Cir. 2009) (internal quotation and citation omitted); accord
Guajardo-Palma v. Martinson, 622 F.3d 801, 805-06 (7th Cir. 2010).

This

requires Plaintiff to identify the underlying claim that was lost. See Christopher
v. Harbury, 536 U.S. 403, 416 (2002); Steidl v. Fermon, 494 F.3d 623, 633 (7th
Cir. 2007).
Plaintiff has adequately identified that claim that was allegedly lost.
However, a review of the docket in that case and its appeal shows beyond dispute
that it was lost through no fault of the Defendants.

Plaintiff’s argument is

basically that because he was not able to file a motion to recall the mandate of the
Seventh Circuit, his appeal was never re-opened and therefore lost, thus also
causing the loss of the underlying litigation. But every premise his claim relies on
is wrong. Plaintiff’s first point that had he been able to file a motion to recall the
mandate, the Seventh Circuit would have granted it is wrong. Plaintiff’s appeal

12

was dismissed for not paying the filing fee, which was incurred because Plaintiff
was denied IFP status. Plaintiff submitted 2 motions seeking to reconsider the
denial of IFP status. Not only were all of the motions denied, but Plaintiff was
explicitly told by the Seventh Circuit that it would not consider any more motions
on this point and would return any further motions to reconsider unfiled.
Plaintiff does not allege that he actually paid the fee and dismissal was unjustified.
In fact has alleged that he couldn’t have paid the fee because of the confiscation of
his trust funds. The only other way a litigant can proceed in an action without
paying the fee is if they proceed IFP–the very issue that Plaintiff had already raised
3 times. The denial of IFP is the only possible subject of a motion to recall the
mandate, and the Seventh Circuit had already told Plaintiff that they would not
consider any further motions on this point, and would return such motions
unfiled. Therefore, the motion Plaintiff allegedly intended to file was frivolous.
Plaintiff has also alleged that Hale contributed to the dismissal of his appeal
by depriving him of funds to pay a partial filing fee, but a review of the appellate
court record shows that Plaintiff was never granted leave to proceed IFP, and thus
an initial partial filing fee was never assessed. Plaintiff also not alleged that he
would have possessed the $505 appellate filing fee if his funds were not
encumbered.2 Additionally, for reasons explained below, Plaintiff’s ability to pay
the fee ultimately has little bearing on whether he has alleged a detriment.

2

Plaintiff’s largest expenditure during the 12 months prior to his appeal was a $400 debit to repay
a loan he received from an outside party; something Hale had nothing to do with. (14-1408, Doc.
54, p. 7).

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Even if Plaintiff had successfully filed a motion and convinced the Seventh
Circuit that he was entitled to proceed IFP, it does not necessarily follow that the
appeal would have saved the underlying suit.

Plaintiff did not “lose” the

underlying suit; it was dismissed pursuant to his own motions to voluntarily
dismiss on September 1, 2015, more than 2 months before the mandate issued.
Even if the Seventh Circuit had agreed with Plaintiff that it both 1) had the
jurisdiction to consider the denial of a non-final order and 2) that the dismissal of
Plaintiff’s Amended Complaint without prejudice was erroneous, Plaintiff still
would not have been free to take up his suit once more because the case had been
dismissed with prejudice and judgment had entered.

As Gentry noted, “[t]he

right of access is at its base a right to be heard.” Gentry v. Duckworth, 65 F.3d
555, 559 (7th Cir. 1995). Here, Plaintiff was heard until he availed himself of his
right to dismiss his case.

He has suffered no detriment at the hands of the

Defendants, and his claims alleging otherwise must be dismissed with prejudice
as frivolous.
Likewise, a refusal to respond to grievances, standing alone, states no
claim. Prison grievance procedures are not constitutionally mandated and thus
do not implicate the Due Process Clause per se. As such, 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.

14

Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996).

Plaintiff has argued that the

failure to respond to grievances deprives him of his access to courts because he
cannot bring claims unless they are exhausted. But this is not correct. Plaintiff is
free to file a suit and then argue that the grievance process is unavailable to him.
Unavailability is a complete defense to the exhaustion requirement. The failure to
respond to grievances does not deprive Plaintiff of his chance to speak to the
Court, and therefore, the failure to respond to grievances is not a detriment
recognizable under the First and/or Fourteenth Amendment. Accordingly, Count
5 will be dismissed with prejudice as legally frivolous.
Count 6 is also legally frivolous. Plaintiff alleges that because he lost 141408, he was continually subjected to Dr. Shah’s denial of medical care.

Dr.

Shah is not a named party to this action, and it is a bedrock principle of § 1983
litigation that each defendant must be personally involved in the conduct at issue.
Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001) (quoting Chavez v.
Ill. State Police, 251 F.3d 612, 651 (7th Cir. 2001)). See also Monell v. Dep’t of
Soc. Servs., 436 U.S. 658 (1978); Eades v. Thompson, 823 F.2d 1055, 1063 (7th
Cir. 1987); Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983); Duncan v.
Duckworth, 644 F.2d 653, 655-56 (7th Cir. 1981). Defendants cannot be held
liable for the actions of non-parties.
Moreover, in order to state a claim for deliberate indifference to a serious
medical need, an inmate must show that he 1) suffered from an objectively
serious medical condition; and 2) that the defendant was deliberately indifferent

15

to a risk of serious harm from that condition. Petties v. Carter, 836 F.3d 722,
727 (7th Cir. 2016).

Plaintiff has not alleged that he suffers from a serious

medical need. He has not alleged that any of the named defendants knew that he
suffered from a serious medical condition and acted with deliberate indifference.
Plaintiff has therefore failed to state a claim for deliberate indifference, and Count
6 will be dismissed with prejudice for failure to state a claim.
In Count 7, Plaintiff alleges that he has been denied equal protection as a
class-of-one. The Equal Protection Clause of the Fourteenth Amendment protects
individuals against arbitrary and irrational government treatment. Geinosky v.
City of Chicago, 675 F.3d 743, 747 (7th Cir. 2012). To adequately plead a classof-one equal protection claim, a plaintiff must allege that he was intentionally
treated differently from other similarly situated individuals without a rational
basis for such treatment. Id. (citing Engquist v. Oregon Dept. of Agriculture,
553 U.S. 591, 601 (2008)). The treatment must be wrongful and differ from the
norm or common practice in a manner that demonstrates discrimination.
McDonald v. Village of Winnetka, 371 F.3d 992, 1009 (7th Cir. 2004). A plaintiff
may plead himself out of court if the complaint provides a rational basis for the
treatment at issue. D.B. ex rel. Kurtis B. v. Kopp, 725 F.3d 681, 686 (7th Cir.
2013).
Plaintiff claims that he was treated differently than a similarly situated
prisoner, William Malone, when he was deprived of a single envelope and his
funds encumbered in November 2015. Once again, public court records tell a

16

different story. Malone filed Malone v. IDOC, 15-cv-1304-MJR-SCW (“15-1304”)
on November 24, 2015. Trust fund statements submitted in connection with that
case shows that during the relevant time period, Malone had no restrictions (i.e.
debts for legal supplies or postage) on his account for the period April 2015
through February 2016. (15-1304, Doc. 26, Doc. 27). In contrast, the trust fund
statement submitted by Plaintiff in connection with the appeal at the center of this
case, 15-2401, shows that Plaintiff had $2,022.29 in restrictions on his trust
found account for the period between 12/1/2014 and 6/25/2015. (14-1408, Doc.
54). Plaintiff filed another suit on November 17, 2015,3 in which he represented
to the Court that he owed IDOC $2,148.42 as of November 15, 2015. (Norfleet v.
Illinois Dept. of Corrs., 15-cv-1279-DGW, Doc. 2, p. 2). Moreover, Malone has
filed at least 1 suit in which he has alleged that Pinckneyville employees
improperly took his trust funds. See Malone v. Hill, 16-cv-973-MJR, Doc, 2, p.
14 (“Administration violated court order and confiscated indigent funds.”).
These records show that Plaintiff and Malone were not similarly situated.
Malone did not have funds encumbered during the relevant time period, and thus
was free to use them to purchase legal supplies. Plaintiff, in contrast, had racked
up a large debt. Malone has also contradicted Plaintiff’s claim that only his funds
were taken by alleging that Pinckneyville employees did confiscate his funds at a
later time. For these reasons, the Court finds that Plaintiff has not adequately
pleaded that other similarly situated inmates were treated differently than him for

3

Interestingly, Plaintiff was able to file this suit the same week that he alleges that the defendants
were acting to deprive him of access to the courts.

17

the purposes of stating an equal protection claim. Plaintiff has also alleged that
defendants acted pursuant to a policy of providing indigent inmates 2 envelopes a
month. He has not alleged that he was not given 2 envelopes. Having disbursed
the envelopes required by their policy and faced with a frivolous motion that was
doomed to be returned unfiled, the Court cannot say that defendants acted in an
irrational manner in depriving Plaintiff of the envelope
Finally, Plaintiff has also alleged that his due process rights were violated in
Count 8.

A plaintiff may bring a substantive due process claim to address

harmful and arbitrary acts by public officials, but the bar to bring such claims is a
high one. Geinosky, 675 F.3d at 750. A plaintiff must pled facts suggesting a
deprivation that “shocks the conscience.” Tun v. Whitticker, 398 F.3d 899, 90203 (7th Cir. 2005).
At this stage, the Court cannot say that depriving Plaintiff of a single
envelope is the type of conduct that “shocks the conscience” for the purpose of
stating a substantive due process claim.

Nor is the prison’s recoupment of

expenses incurred from Plaintiff’s trust fund account. Moreover, it is clear that
the act was not harmful because the Seventh Circuit had already told Plaintiff that
a motion seeking reconsider of the denial of IFP would not be filed, and Plaintiff
had voluntarily dismissed the underlying suit. Section 1983 is a tort statute, so
plaintiff must have suffered a harm to have a cognizable claim.

Bridges v.

Gilbert, 557 F.3d 541, 555 (7th Cir. 2009); Doe v. Welborn, 110 F.3d 520, 523
(7th Cir. 1997).

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Plaintiff’s substantive due process claim fails in any event, because the
Supreme Court has directed that substantive due process claims be analyzed
under the specific constitutional provision most relevant to the claim, here the
First and Fourteenth Amendments, in lieu of the Due Process clause. Koutnik v.
Brown, 456 F.3d 777, 781 (7th Cir. 2006). As the Court has already analyzed
Plaintiff’s claims under the First and Fourteenth Amendments and found them
wanting, the invocation of substantive due process cannot save him. Accordingly,
Count 8 will also be dismissed with prejudice for failure to state a claim.
Pending Motions
Plaintiff’s pending motions are denied as moot, as this case will be
dismissed with prejudice for assertion of legally frivolous claims and failure to
state a claim. (Doc. 21) (Doc. 22) (Doc. 24) (Doc. 25).
Disposition
IT IS HEREBY ORDERED that this case will be DISMISSED with
prejudice for asserting legally frivolous claims and otherwise failing to state a
Plaintiff’s pending motions are DENIED as MOOT.

claim.

22)(Doc. 24)(Doc. 25).

(Doc. 21)(Doc.

Plaintiff is assessed a strike pursuant to 28 U.S.C.

1915(g).
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

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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. Lesza, 181 F.3d 857, 858-59 (7th Cir. 1999); Lucien v. Jockisch, 133 F.3d
464, 467 (7th Cir. 1998). Moreover, if the appeal is found to be nonmeritorious,
Plaintiff may also incur another “strike.”

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.
The Clerk of Court is directed to enter judgment and close this case.
IT IS SO ORDERED.

Judge Herndon
2018.07.11 17:00:38 -05'00'
United States District Judge

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