Kruger v. Rees
MEMORANDUM AND ORDER severing case number 18-512-DRH. Signed by Judge David R. Herndon on 4/8/2018. (tjk)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOSHUA W. KRUGER, # K-50216,
JACQUELINE A. LASHBROOK,
ALEX D. JONES,
STEPHEN C. KEIM,
JOHN DOE #1 (Mail Room Supervisor))
JOHN DOE #2,
JOHN DOE #3,
JOHN DOES #4-11 (Religious Practice )
Advisory Board, IDOC),
JOHN DOE #12,
and JOHN DOE #13,
Case No. 18-cv-512-DRH
MEMORANDUM AND ORDER
HERNDON, District Judge:
Plaintiff, currently incarcerated at Menard Correctional Center (“Menard”),
has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff
raises a number of claims, including the improper opening of his “legal” mail
outside his presence, the rejection of his incoming publications and religious
material, retaliation for his litigation and grievance activity, and denial of his right
to practice his religion. This case is now before the Court for a preliminary review
of the Complaint pursuant to 28 U.S.C. § 1915A. Additionally, the Court must
consider whether Plaintiff’s diverse claims against various Defendants may
properly proceed in the same lawsuit. This initial review reveals that several of
Plaintiff’s claims are not properly joined in this action. These improperly joined
claims shall therefore be severed into separate cases, where they shall undergo
the required § 1915A evaluation.
Under § 1915A, the Court is required to screen prisoner complaints to filter
out non-meritorious claims. See 28 U.S.C. § 1915A(a). The Court must dismiss
any portion of the complaint that is legally frivolous, malicious, fails to state a
claim upon which relief may be granted, or asks for money damages from a
defendant who by law is immune from such relief. 28 U.S.C. § 1915A(b).
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 “no reasonable person could
suppose to have any merit.” 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.
Conversely, a complaint is plausible on its face “when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Although the Court is obligated to accept factual allegations as true, see Smith v.
Peters, 631 F.3d 418, 419 (7th Cir. 2011), some factual allegations may be so
sketchy or implausible that they fail to provide sufficient notice of a plaintiff’s
claim. Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). Additionally, Courts
“should not accept as adequate abstract recitations of the elements of a cause of
action or conclusory legal statements.” Id. At the same time, however, the factual
allegations of a pro se complaint are to be liberally construed.
See Arnett v.
Webster, 658 F.3d 742, 751 (7th Cir. 2011); Rodriguez v. Plymouth Ambulance
Serv., 577 F.3d 816, 821 (7th Cir. 2009).
Applying these standards, one of the claims that shall remain in this action
survives threshold review under § 1915A.
Plaintiff was transferred from Pontiac Correctional Center to Menard in
October 2015. At the time of his transfer, he had 3 civil rights lawsuits pending
in the Central District of Illinois against IDOC officials. In connection with those
cases, Plaintiff received a considerable amount of correspondence from the
Illinois Attorney General’s (“IAG”) office. He notes that the Illinois Administrative
Code defines “legal mail” as including correspondence to or from the IAG. (Doc.
1, p. 9).
John Doe mail room staff (John Does #1 and #13)
Plaintiff identifies 13 separate John Doe Defendants in his list of parties. (Doc. 1, pp. 4-5). However,
he does not always identify these John Doe Defendants by their assigned numbers in the narrative portion
of his Complaint, making it difficult for the Court to discern which Doe was allegedly involved in a
particular instance of misconduct. The Court will therefore associate the various claims with the John
presumably read 21 pieces of Plaintiff’s incoming mail from the IAG, postmarked
between April 5, 2016, and January 20, 2017, without Plaintiff being present. Id.
According to Plaintiff, Menard mail room staff and John Doe #1 (Mail Room
Supervisor) had a policy to open all incoming mail from the IAG office. (Doc. 1, p.
Butler (former Menard Warden and current IDOC Deputy Director) and
Lashbrook (current Menard Warden) knew of this policy because of numerous
prisoner complaints/grievances, but failed to intervene to stop this “illegal
practice.” (Doc. 1, p. 10).
Plaintiff further alleges that John Does #1 and #13 opened his mail from
the IAG, as well as delayed processing his regular mail, in retaliation for Plaintiff’s
lawsuits against IDOC officials and his 2016 grievances against mail room staff.
(Doc. 1, p. 10).
Plaintiff describes several specific incidents when incoming published
material was rejected.
In February 2016, Bradley (Publication Review Officer)
and then-Warden Butler denied Plaintiff a book he had ordered (The Truth: An
Uncomfortable Book about Relationships). (Doc. 1, p. 11). Plaintiff asserts that
this book was not on the “banned” list and there was no legitimate penological
reason to reject it.
In June 2016, a John Doe2 mail room worker refused to
deliver 4 football preview magazines sent to Plaintiff by his brother. (Doc. 1, p.
Plaintiff also claims that the rejection of the football magazines was in
Doe Defendant(s) who appear to have been responsible, based on Plaintiff’s descriptions. John Doe #1 is
the Mail Room Supervisor, and John Doe #13 is the staff member who opened and read Plaintiff’s legal
mail outside his presence. (Doc. 1, pp. 4-5).
Plaintiff did not include this John Doe among his list of parties, therefore, the Court shall designate the
unknown Defendant from this June 2016 incident as “John Doe #14.”
retaliation for grievances and/or complaints he had made earlier in 2016 against
mail room staff.
On July 20, 2016, Bradley and Shemonic (Publication
Review Officer), along with Butler, rejected Plaintiff’s June 2016 issue of Prison
Legal News. (Doc. 1, p. 12).
On April 14, 2017, John Doe #3 refused to deliver a book (Tools for
Titans) to Plaintiff. (Doc. 1, p. 11). On April 28, 2017, John Doe #2 rejected an
incoming package of 5 religious greeting cards, which Plaintiff had purchased
after Warden Lashbrook had given him prior approval for the material. Id. These
rejections also amounted to unconstitutional retaliation, according to Plaintiff,
and the rejection of the religious cards violated the RLUIPA.3 (Doc. 1, pp. 11-12).
The Complaint describes 2 incidents which allegedly violated Plaintiff’s
First Amendment right to freedom of association.
On March 21, 2016, Rees
(former Acting Warden of Operations) banned Plaintiff from receiving visits from
his twin brother, Joseph Kruger. (Doc. 1, p. 11). On June 7, 2017, Jones (Acting
Warden of Operations) imposed another ban on visits from Joseph Kruger. Id.
At an unspecified time during or before 2016, Butler and John Doe #12
authorized the construction of 2 adjoining “attorney legal call” booths in the
Menard Chapel. (Doc. 1, p. 12). The booths, however, did not provide privacy for
privileged telephone conversations between a prisoner and his attorney. Plaintiff
had calls with his attorney on 2 occasions (once in 2016 and once in 2017), where
he was “forced to reveal privileged legal information” regarding his criminal
The Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc-1.
appeal, when his call was overheard by another prisoner. Id. Plaintiff indicates
that Menard staff could also hear these conversations.
Plaintiff adheres to the Odinism-Asatru religion. (Doc. 1, p. 12). He claims
that Baldwin (IDOC Director), Harner (Menard Chaplain), Kennell (Pontiac
Correctional Center Chaplain), Keim (IDOC Chief Chaplain), Butler, Lashbrook,
and IDOC’s Religious Practice Advisory Board (John Does #4-11) refuse to
accommodate his religious practices in a number of ways.
prohibiting prisoners from wearing their religious medallions (Thor’s Hammers
and Volknuts) on visits at Menard or during a transfer between prisons or to
court; prohibiting congregate worship for monthly observances (while allowing
other faiths to engage in group worship); prohibiting adherents from possessing
runestones or runic flash cards (while permitting other religious groups to have
such items as tarot cards); and refusing to serve him a religious diet, especially
for feast days (while honoring dietary requests for prisoners of other faiths).
(Doc. 1, pp. 12-13). These actions violated Plaintiff’s First Amendment right to
practice his faith, violated his Fourteenth Amendment right to equal protection,
and violated the RLUIPA. Id.
Further, Baldwin and John Does #4-11 denied
Plaintiff due process when they refused to respond to his grievances and letters on
this subject. Finally, Baldwin and John Does #4-11 retaliated against Plaintiff for
filing grievances over the refusal to accommodate his religious practices, by
refusing to respond to his grievances. (Doc. 1, p. 13).
Plaintiff seeks declaratory and injunctive relief, as well as compensatory
and punitive damages. (Doc. 1, pp. 14-15).
Merits Review Pursuant to 28 U.S.C. § 1915A
Based on the allegations of the Complaint, the Court finds it convenient to
divide the pro se action into the following 16 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 as to their merit. Any other claim that is mentioned in
the Complaint but not addressed in this Order should be considered dismissed
Butler, Lashbrook, and John Doe #1 (Mail Room
Supervisor) maintained a policy to open all incoming mail from the
Illinois Attorney General, and John Does #1 and #13 opened 21 of
Plaintiff’s incoming letters from that office outside his presence
between April 2016 and January 2017;
Count 2: John Does #1 and #13 improperly opened Plaintiff’s mail
from the Illinois Attorney General, and delayed processing his
regular mail, in retaliation for Plaintiff’s litigation and grievance
activity, thus violating Plaintiff’s First Amendment rights;
Count 3: In February 2016, Bradley and Butler rejected a book
Plaintiff ordered, The Truth: An Uncomfortable Book about
Relationships without a legitimate penological reason for denying the
publication, in violation of the First Amendment;
Count 4: In June 2016, John Doe #14 rejected 4 football preview
magazines mailed to Plaintiff by his brother, in violation of the First
Count 5: John Doe #14 rejected Plaintiff’s 4 football preview
magazines in retaliation for Plaintiff’s grievances/complaints against
mail room staff;
Count 6: On July 20, 2016, Bradley, Shemonic, and Butler rejected
Plaintiff’s June 2016 issue of Prison Legal News, in violation of the
Count 7: On April 14, 2017, John Doe #3 rejected Plaintiff’s book,
Tools for Titans, in violation of the First Amendment;
Count 8: John Doe #3 rejected the Tools for Titans book in
retaliation for Plaintiff’s protected grievance and litigation activity;
Count 9: On April 28, 2017, John Doe #2 rejected 5 religious
greeting cards ordered by Plaintiff, in violation of the First
Amendment and the RLUIPA;
Count 10: John Doe #2 rejected the religious greeting cards in
retaliation for Plaintiff’s protected grievance and litigation activity;
Count 11: On March 21, 2016, Rees prohibited Plaintiff from
receiving visits from his brother, Joseph Kruger, in violation of the
Count 12: On June 7, 2017, Jones prohibited Plaintiff from
receiving visits from his brother, Joseph Kruger, in violation of the
Plaintiff was denied the right to have confidential
telephone calls with his attorney on 2 occasions (once in 2016 and
once in 2017) because the legal call booths constructed under the
direction/authority of Butler and John Doe #12 allowed other
prisoners and staff to overhear Plaintiff’s conversations;
Count 14: Baldwin, Harner, Keim, Butler, Lashbrook, and John
Does #4-11 refused to allow Plaintiff to fully practice his OdinismAsatru religious faith, by prohibiting him from wearing medallions or
possessing certain items, disallowing congregate worship, and
denying his religious diet, in violation of the First Amendment,
Fourteenth Amendment, and the RLUIPA;
Count 15: Baldwin and John Does #4-11 denied Plaintiff due
process and retaliated against him, by refusing to answer his
Count 16: Kennell, while Plaintiff was at Pontiac Correctional Center
in October 2015 and before, refused to allow Plaintiff to fully practice
his Odinism-Asatru religious faith, by prohibiting him from wearing
religious medallions during his transfer between prisons, and/or
prohibiting his possession of certain items, disallowing congregate
worship, and/or denying his religious diet, in violation of the First
Amendment, Fourteenth Amendment, and the RLUIPA.
Severance of Claims & Defendants
As part of the screening process, the Court must consider whether the
above claims and parties may properly proceed in the same action, in
consideration of Federal Rule of Civil Procedure 20.
Under Rule 20(a)(2),4 a
“plaintiff may join multiple defendants in a single action only if plaintiff asserts at
least one claim to relief against each of them that arises out of the same
transaction or occurrence and presents questions of law or fact common to all.”
Wright, Miller, & Kane, 7 Federal Practice & Procedure Civ. 3d § 1655 (West
2017); FED. R. CIV. P. 20(a)(2).
The Seventh Circuit instructs that unrelated
claims against different defendants belong in separate lawsuits, “not only to
prevent the sort of morass” produced by multi-claim, multi-defendant suits “but
also to ensure that prisoners pay the required filing fees” under the Prison
Litigation Reform Act. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (citing
28 U.S.C. § 1915(b), (g)). Severance of unrelated claims is encouraged, and the
Seventh Circuit has recently warned district courts not to allow inmates “to flout
the rules for joining claims and defendants, see FED. R. CIV. P. 18, 20, or to
circumvent the Prison Litigation Reform Act’s fee requirements by combining
multiple lawsuits into a single complaint.” Owens v. Godinez, 860 F.3d 434, 436
Rule 20, which governs joinder of parties in a single action, must be satisfied before the Court turns to
the question of whether claims are properly joined under Rule 18. Intercon Research Assoc’s, Ltd. v.
Dresser Industries, Inc., 696 F.2d 53, 57 (7th Cir. 1982); Wright, Miller, & Kane, 7 Federal Practice &
Procedure Civil 3d § 1655 (West 2017).
(7th Cir. 2017). See also Wheeler v. Talbot, 695 F. App’x 151, 152 (7th Cir.
2017) (district court should have severed unrelated and improperly joined claims
or dismissed one of them).
Consistent with George, Owens, and Wheeler,
improperly joined parties and/or claims shall be severed into new cases, given
new case numbers, and assessed separate filing fees.
Plaintiff’s Complaint presents a morass of claims which arose from a
number of distinct transactions/occurrences.
Counts 1 and 2 concerning the
opening of mail from the IAG may properly proceed together, and shall remain in
this original action. The remaining claims shall be severed.
Counts 4 and 5 both concern the June 2016 rejection of football magazines,
but this incident has nothing to do with the other counts in the case, and no other
count involves John Doe #14. Similarly, Counts 7 and 8 (John Doe #3) belong
together, as do Counts 9 and 10 (John Doe #2) – but each set of claims arose
from a distinct incident and involves (so far as Plaintiff knows) a different John
Count 11 involves only Rees, and did not arise from the same
transaction/occurrence as did Count 12 against Jones.
Pursuant to Rule 20,
these 5 sets of claims (Counts 4-5, Counts 7-8, Counts 9-10, Count 11, and Count
12) involve distinct Defendants, did not arise from the same transaction or
occurrence, and must therefore be severed into 5 separate cases. Similarly, any
claim that Plaintiff has against Pontiac Defendant Kennell must have arisen at
Pontiac, in a separate transaction from the religious claims in Count 14 which
arose at Menard. Therefore, Count 16 against Kennell shall also be severed into a
The remaining claims also arose from distinct incidents, and additional
severance shall be required. However, certain of the claims that share common
Defendants may be properly joined pursuant to Rule 18.
Count 3 involves a February 2016 rejection of a book by Bradley and
Butler. Count 6 arose from a distinct July 2016 rejection of Prison Legal News,
against Bradley, Butler, and Shemonic. Rule 18 permits a Plaintiff to join any
other claim he has against a Defendant who is properly in the action, even if the
additional claim is unrelated to the first claim. Rule 18 thus permits Count 3
against Bradley and Butler to be properly joined with Count 6, even though the 2
claims arose from distinct incidents.
Count 14 (Baldwin, Harner, Keim, Butler, Lashbrook, and John Does #411) and Count 15 (Baldwin and John Does #4-11) may proceed together, because
each count relates to the alleged denial of Plaintiff’s right to engage in his religious
practice, and they share common Defendants. Butler and Lashbrook are named
in Count 14, and are also named in Count 1. However, the overlap of these 2
Defendants does not serve to link Count 1 and Count 14 in the same action as to
the remaining Defendants (Baldwin, Harner, Keim, and John Does #4-11).
transactions/occurrences, it is improper under Rule 20 to join John Does #1 and
#13 from Count 1, in the same action as Baldwin, Harner, Keim, and John Does
#4-11 from Count 14.
The merits review of Counts 1 and 2 is included below, and Count 1 shall
be dismissed. Count 2 shall then proceed in the instant action. All remaining
claims against Butler (Counts 3, 6, 13, and the portion of Count 14 involving
Butler) shall then proceed together in one severed case, which shall also include
To summarize, Plaintiff’s claims shall be severed as follows:
First severed case:
Count 3 (Bradley and Butler), Count 6 (Bradley,
Shemonic, and Butler), Count 13 (Butler and John Doe #125), and the portion of
Count 14 that is against Butler.
Second severed case: Counts 4 and 5 against John Doe #14.6
Third severed case: Counts 7 and 8 against John Doe #3.
Fourth severed case: Counts 9 and 10 against John Doe #2.
Fifth severed case: Count 11 against Rees.
Sixth severed case: Count 12 against Jones.
Seventh severed case: Count 14 (Baldwin, Harner, Keim, Lashbrook, and
John Does #4-11), and Count 15 (Baldwin and John Does #4-11).
Eighth severed case: Count 16 against Kennell. Because this claim arose
at Pontiac, this severed case will be transferred to the Central District of Illinois
The inclusion of John Doe #12 with the claims (Counts 3, 6, and 14) which do not relate to him may
violate Rule 20. Therefore, when this individual is identified by name, further severance may be required.
As the identity of John Doe #12 is presently unknown, this Defendant shall be included in the first
severed case at this time.
The Court recognizes the possibility that when Plaintiff ultimately identifies John Does #2, #3, #13, and
#14, all of whom dealt with incoming mail and/or publications, it may turn out that one or more of these
unknown parties is the same individual. If that is the case, the Court will consider consolidating any
cases against the same person which were previously severed, and adjusting filing fees accordingly.
after it is opened and assigned a new case number.
The claims in each severed case shall undergo the required § 1915A merits
review after the new case number and judge assignment has been made. Plaintiff
shall be assessed a new filing fee for each severed case.
Merits Review of Counts 1 and 2
Dismissal of Count 1 – Opening of Mail from Attorney General
Plaintiff characterizes his incoming letters from the Illinois Attorney
General as “legal mail,” and notes that IAG letters are defined as legal mail in the
relevant section of the Illinois Administrative Code.
(Doc. 1, p. 9).
asserts that his constitutional rights were violated when 21 of his incoming letters
from the IAG were opened outside his presence. However, this correspondence
does not fall within the category of privileged attorney-client communication that
raises constitutional concerns if it is opened by a prison official before being
delivered to the inmate-recipient.
An inmate’s right to have certain mail opened only in his presence applies
only to correspondence between the inmate and an attorney who either is
representing him, or from whom the inmate is seeking legal representation. See
Kaufman v. McCaughtry, 419 F.3d 678, 686 (7th Cir. 2005). Correspondence
between an inmate and his attorney, or mail concerning potential legal
representation, is given heightened protection because interference with such mail
has the potential to hinder the inmate’s right of access to the courts. Id.; see also
Rowe v. Shake, 196 F.3d 778, 782 (7th Cir. 1999).
Further, even if a letter
comes from the inmate’s lawyer, the envelope must be clearly marked as
containing privileged attorney-client correspondence in order to receive the
special treatment of being opened only in the presence of the inmate-recipient.
See Wolff v. McDonnell, 418 U.S. 539, 576–77 (1974); Guajardo-Palma v.
Martinson, 622 F.3d 801, 804 (7th Cir. 2010).
Mail from the Illinois Attorney General does not fall into the category of
legal mail between an inmate and his lawyer, because the Attorney General’s office
would be representing the defendants in Plaintiff’s lawsuits, not Plaintiff. As such,
correspondence from this source may be opened and inspected outside Plaintiff’s
presence without violating his constitutional rights.
Moreover, Plaintiff does not assert that any of the IAG envelopes were
marked in such a way that would alert prison staff to the need to open them only
in Plaintiff’s presence. In order for privileged attorney-client correspondence to
be held for opening only in the inmate’s presence, the envelope must be clearly
marked by the sender with a warning that the letter is “legal mail,” “privileged
legal correspondence,” or some similar notice that draws attention to its
confidential nature. Kaufman, 419 F.3d at 685-86 (citing Wolff, 418 U.S. at 577).
The mere fact that an envelope bears the return address of a law office is not
sufficient to alert prison officials that the contents are privileged and should be
opened only in the presence of the prisoner-recipient. Not every letter from a law
office necessarily represents privileged attorney-client communications.
Guajardo-Palma, 622 F.3d at 805-06; Kaufman, 419 F.3d at 686.
Even if Plaintiff’s mail had been improperly opened, he has not alleged that
his ability to litigate his pending civil rights cases was prejudiced in any way by
the opening of his letters from the Attorney General. In order to maintain a claim
for denial of access to the courts, a plaintiff must demonstrate some hindrance to
his ability to prosecute a meritorious legal claim. No constitutional claim is stated
unless the element of prejudice is met. See Guajardo-Palma, 622 F.3d at 805-06
(“whether the unjustified opening of [attorney mail] is a violation of the right of
access to the courts or merely, as intimated in Kaufman and held in Gardner, a
potential violation .... [w]e think [as with claims challenging the adequacy of a
prison's library or legal assistance program] there must likewise b[e] a showing of
a hindrance”) (citing Gardner v. Howard, 109 F.3d 427, 430-31 (8th Cir. 1997));
Kaufman, 419 F.3d at 686 (prisoner “offered no evidence that his ability to
litigate any matter” was affected by the opening of mail from attorneys).
Finally, if this “legal mail” was opened in violation of the procedure set forth
in the Illinois Administrative Code, such a violation does not amount to a
constitutional claim. A federal court does not enforce state law or regulations.
Archie v. City of Racine, 847 F.2d 1211, 1217 (7th Cir. 1988) (en banc), cert.
denied, 489 U.S. 1065 (1989); Pasiewicz v. Lake Cnty. Forest Preserve Dist.,
270 F.3d 520, 526 (7th Cir. 2001).
For these reasons, Count 1 against Butler, Lashbrook, and John Doe #1
for maintaining a policy to open all incoming mail from the Illinois Attorney
General, and against John Does #1 and #13 for opening Plaintiff’s IAG letters
outside his presence, fails to state a claim upon which relief may be granted.
Count 1 shall be dismissed with prejudice.
Count 2 – Retaliation
Plaintiff also alleges that John Does #1 and #13 opened his IAG letters,
and delayed processing his regular (non-“legal”) mail, in retaliation for Plaintiff’s
litigation and grievance activity.
He does not elaborate on the alleged delays
affecting his correspondence.
Prison officials may not retaliate against inmates for filing grievances,
lawsuits, or otherwise complaining about their conditions of confinement. See,
e.g., Gomez v. Randle, 680 F.3d 859, 866 (7th Cir. 2012); Walker v. Thompson,
288 F.3d 1005 (7th Cir. 2002); DeWalt v. Carter, 224 F.3d 607 (7th Cir. 2000);
Babcock v. White, 102 F.3d 267 (7th Cir. 1996); Cain v. Lane, 857 F.2d 1139
(7th Cir. 1988).
The issue in a retaliation claim is whether the plaintiff
experienced an adverse action that would likely deter First Amendment activity in
the future, and if the First Amendment activity was “at least a motivating factor” in
the defendants’ decision to take the retaliatory action. Bridges v. Gilbert, 557
F.3d 541, 551 (7th Cir. 2009). “A complaint states a claim for retaliation when it
sets forth ‘a chronology of events from which retaliation may plausibly be
inferred.’” Zimmerman v. Tribble, 226 F.3d 568, 573 (7th Cir. 2000) (citation
Here, Plaintiff connects the alleged retaliation to the lawsuits he brought
against prison officials before his transfer to Menard. As well, he claims that he
submitted grievances and made other complaints against mail room personnel,
and alleges that retaliation by John Does #1 and #13 ensued. At this early stage
of the case, Plaintiff’s retaliation claim in Count 2 survives § 1915A review, and
may proceed in this action. However, the John Doe Defendants must be identified
with particularity before service of the Complaint can be made on them.
Where a prisoner’s complaint states specific allegations describing conduct
of individual prison staff members sufficient to raise a constitutional claim, but
the names of those defendants are not known, the prisoner should have the
opportunity to engage in limited discovery to ascertain the identity of those
defendants. Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 832 (7th
Cir. 2009). In this case, while no viable claim has been stated against Menard
Warden Lashbrook in her individual capacity, she shall remain as a Defendant in
her official capacity only. In that capacity, she shall be responsible for responding
to discovery aimed at identifying these unknown Defendants.
discovery will be set by the United States Magistrate Judge. Once the names of
the John Doe #1 and/or #13 are discovered, Plaintiff shall file a motion to
substitute each newly identified defendant in place of the generic designations in
the case caption and throughout the Complaint.
Plaintiff’s motion for recruitment of counsel (Doc. 3) shall be referred to the
United States Magistrate Judge for further consideration.
COUNT 1 is DISMISSED with prejudice for failure to state a claim upon
which relief may be granted. Defendant BUTLER is DISMISSED from this action
All claims against Defendant LASHBROOK in her individual
capacity are DISMISSED from this action with prejudice, and LASHBROOK shall
remain as a Defendant in her official capacity only, as Warden of Menard
IT IS FURTHER ORDERED that, pursuant to Federal Rule of Civil
Procedure 20(a)(2), Plaintiff’s claims in COUNTS 3-16, which are unrelated to the
remaining claim in Count 2, are SEVERED into 8 new cases as follows:
First Severed Case: Count 3 against Bradley and Butler for
rejecting Plaintiff’s book (The Truth: An Uncomfortable Book about
Relationships); Count 6 against Bradley, Shemonic, and Butler for
rejecting Plaintiff’s June 2016 issue of Prison Legal News; Count 13
against Butler and John Doe #12 for denying Plaintiff the ability to
engage in private telephone conferences with his attorney; and the
portion of Count 14 that is against Butler, for violating Plaintiff’s
rights under the First and Fourteenth Amendment and the RLUIPA to
freely practice his religion;
Second Severed Case: Counts 4 and 5 against John Doe #14 for
rejecting 4 football preview magazines in June 2016, and in so doing,
retaliating against Plaintiff for his complaints against mail room staff;
Third Severed Case: Counts 7 and 8 against John Doe #3 for
rejecting Tools for Titans on April 14, 2017, and in so doing,
retaliating against Plaintiff for his grievances and litigation activity;
Fourth Severed Case: Counts 9 and 10 against John Doe #2 for
rejecting Plaintiff’s religious greeting cards on April 28, 2017, and in
so doing, violating the RLUIPA and retaliating against Plaintiff for his
grievances and litigation activity;
Fifth Severed Case: Count 11 against Rees, for prohibiting visits
from Plaintiff’s brother on March 21, 2016;
Sixth Severed Case: Count 12 against Jones, for prohibiting visits
from Plaintiff’s brother on June 7, 2017;
Seventh Severed Case: Count 14 against Baldwin, Harner, Keim,
Lashbrook, and John Does #4-11 for violating Plaintiff’s rights under
the First and Fourteenth Amendments and the RLUIPA to freely
practice his religion, and Count 15 against Baldwin and John Does
#4-11 for denial of due process and retaliation because they refused
to answer Plaintiff’s grievances;
Eighth Severed Case: Count 16 against Kennell, for violating
Plaintiff’s rights under the First and Fourteenth Amendments and the
RLUIPA to freely practice his religion while Plaintiff was at Pontiac
Correctional Center in October 2015 and before.
The claims in each newly severed case shall be subject to a merits review
pursuant to 28 U.S.C. § 1915A after the new case number and judge assignment
In each new case, the Clerk is DIRECTED to file the following
This Memorandum and Order
The Original Complaint (Doc. 1)
Plaintiff’s motion to proceed in forma pauperis (Doc. 2)
Plaintiff’s motion for recruitment of counsel (Doc. 3)
Plaintiff will be responsible for an additional $350.00 filing fee in each
new case. No service shall be ordered on the Defendant(s) in the severed cases
until the § 1915A review is completed.
IT IS FURTHER ORDERED that the only claim remaining in this
action is COUNT 2 against Defendants LASHBROOK (Official Capacity
Only), JOHN DOE #1, and JOHN DOE #13, for retaliation. This case shall now
be captioned as: JOSHUA W. KRUGER, Plaintiff, vs. LASHBROOK, JOHN DOE
#1, and JOHN DOE #13, Defendants.
IT IS FURTHER ORDERED that Defendants BALDWIN, BUTLER, REES,
JONES, BRADLEY, SHEMONIC, HARNER, KENNELL, KEIM, JOHN DOE #2,
JOHN DOE #3, JOHN DOES #4-11, and JOHN DOE #12 are TERMINATED
from this action with prejudice.
As to COUNT 2, which remains in the instant case, the Clerk of Court shall
prepare for Defendant LASHBROOK (Official Capacity as Menard Warden): (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 Defendant’s
place of employment as identified by Plaintiff.
If 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 Defendant, and the Court will require Defendant to pay the full
costs of formal service, to the extent authorized by the Federal Rules of Civil
If the Defendant cannot be found at the 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.
information shall not be maintained in the court file, nor disclosed by the Clerk.
Service shall not be made on Defendants JOHN DOE #1 and #13 until
such time as Plaintiff has identified them by name in a properly filed motion for
substitution of parties.
Plaintiff is ADVISED that it is his responsibility to
provide the Court with the names and service addresses for these individuals.
Defendant is 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 a United
States Magistrate Judge for further pre-trial proceedings, which shall include a
determination on the pending motion for recruitment of counsel (Doc. 3), and a
plan for discovery aimed at identifying the unknown defendants with particularity.
Further, this entire matter shall be REFERRED to the United States
Magistrate Judge 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, notwithstanding 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
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.
United States District Judge
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