Thurman v. Doe

Filing 4

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Signed by Judge Nancy J. Rosenstengel on 5/10/2018. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

DAVID THURMAN,
# B36829,

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Plaintiff,
vs.
JOHN/JANE DOE,
Defendant.

Case No. 18-cv-835-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff David Thurman, an inmate of the Illinois Department of Corrections currently
house at Menard Correctional Center (“Menard”), brings this action for deprivations of his
constitutional rights pursuant to 42 U.S.C. § 1983. Plaintiff claims that, on a single occasion, he
was denied access to a magazine that depicted women in the nude. He names as a defendant
John/Jane Doe, the unidentified correctional officer who confiscated his magazine. Plaintiff
seeks monetary damages, as well as declaratory and injunctive relief.
This case is now before the Court for a preliminary review of the 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

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(2) seeks monetary relief from a defendant who is immune from
such relief.
An action or claim is frivolous if “it lacks an arguable basis either in law or in fact.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989). Frivolousness is an objective standard that refers
to a claim that any reasonable person would find meritless. Lee v. Clinton, 209 F.3d 1025, 102627 (7th Cir. 2000). An action fails to state a claim upon which relief can be granted if it does not
plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). The claim of entitlement to relief must cross “the line
between possibility and plausibility.” Id. at 557. At this juncture, the factual allegations of the
pro se complaint are to be liberally construed. See Rodriguez v. Plymouth Ambulance Serv., 577
F.3d 816, 821 (7th Cir. 2009).
THE COMPLAINT
On or about November 27, 2016, 1 Plaintiff, who had recently been transferred to Menard
from Stateville Correctional Center (“Stateville”), “was called to property.” (Doc. 1, p. 9). When
Plaintiff arrived, John/Jane Doe, a correctional officer working in the property department, told
Plaintiff a magazine he attempted to transfer from Stateville had been confiscated because it
depicted penetration. Id. According to Plaintiff, the magazine contained nude photographs of
women, but did not depict penetration. (Doc. 1, pp. 9, 13).
On November 27, 2016, Plaintiff filed a grievance pertaining to John/Jane Doe
confiscating his magazine. 2 (Doc. 1, p. 13). Plaintiff claimed that the confiscation was not
authorized because the magazine was a “nude magazine with women only in it no penetration.”
Id. The grievance was denied by J. Clendenin, a counselor, on the ground that the magazine was

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A grievance attached to the Complaint indicates that the confiscation may have occurred on November 25, 2016.
(Doc. 1, p. 15).
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Plaintiff also complained about his chess pieces being confiscated. (Doc. 1, p. 13).

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“contraband due to penetration in it.” Id. Plaintiff’s grievance was subsequently considered by
the Larissa Wandro, a grievance officer. (Doc. 1, p. 12). Wandro concluded that Plaintiff’s
claims pertaining to the confiscated magazine were unsubstantiated and recommended denying
the grievance. Id. The Chief Administrative Officer concurred with Wandro’s recommendation.
Id. Plaintiff appealed to the Director, but his appeal was denied as untimely. (Doc. 1, p. 11).
Plaintiff filed an additional grievance on December 8, 2016. (Doc. 1, p. 15). Plaintiff indicated
that he wanted the Publication Review Committee to evaluate the magazine and provide a
written explanation of its findings. Id. As to this request, the grievance counselor stated,
“Personal Property has the same ban list that the Publication Review Officer has so the
magazines are a dead issue.” Id.
Plaintiff contends that the subject confiscation was not “random” because it is “their”
policy to allow correctional officers in the personal property department to confiscate restricted
publications. (Doc. 1, p. 9). Plaintiff contends that the confiscation violated the Illinois
Administrative Code because (1) the Chief Administrative Officer did not concur with the
decision of the publications review officer (see Ill. Admin. Code tit. 20 §525.230 (d)) and
(2) Plaintiff did not receive a written explanation pertaining to the confiscation (see Ill. Admin.
Code tit. 20 §525.230(c)). Id. Plaintiff also contends that the confiscation violated his First and
Fourteenth Amendment rights. Finally, Plaintiff contends that his grievances pertaining to the
matter were mishandled. Id
DISCUSSION
Based on the allegations of the Complaint, the Court finds it convenient to divide the pro
se action into the following counts. The parties and the Court will use these designations in all
future pleadings and orders, unless otherwise directed by a judicial officer of this Court. The

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designation of these counts does not constitute an opinion regarding their merit. Any claims not
addressed in this Order are considered dismissed without prejudice from this action.
Count 1:

First Amendment claim against John/Jane Doe for confiscating
Plaintiff’s magazine on a single occasion (on or about November
25, 2016 or November 27, 2016).

Count 2:

Fourteenth Amendment claim against John/Jane Doe for
confiscating Plaintiff’s magazine on a single occasion (on or about
November 25, 2016 or November 27, 2016).

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Count 3:

Claim against John/Jane
Administrative Code.

Doe

for

violating

the

Illinois

Count 1
The freedom of speech under the First Amendment includes the freedom to speak and to
read. King v. Federal Bureau of Prisons, 415 F.3d 634, 638-39 (7th Cir. 2005) (citing Stanley v.
Georgia, 394 U.S. 557, 564 (1969); Lamont v. Postmaster General, 381 U.S. 301, 306-07
(1965)). Although inmates do not lose these rights when they are incarcerated, prison officials
may impose some restrictions on them. Turner v. Safley, 482 U.S. 78 (1987). Officials have
“great latitude” in limiting a prisoner’s reading materials. Payton v. Cannon, 806 F.3d 1109,
1110 (7th Cir. 2015).
When “a prison regulation impinges on inmates’ constitutional rights, the regulation is
valid if it is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. at
89. However, “the arbitrary denial of access to published materials violates an inmate’s first
amendment rights.” Antonelli v. Sheahan, 81 F.3d 1422, 1433 (7th Cir. 1996) (quoting Martin v.
Tyson, 845 F.2d 1451, 1454 (7th Cir.) (per curiam), cert. denied, 488 U.S. 863 (1988)). The
Supreme Court outlined four factors that courts must consider when evaluating whether a
regulation that restricts inmates’ rights is reasonably related to a legitimate penological interest
sufficient to withstand constitutional scrutiny. Turner, 482 U.S. at 89-91. These factors include:

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“(1) the validity and rationality of the connection between a legitimate and neutral government
objective and the restriction; (2) whether the prison leaves open ‘alternative means of exercising
the restricted right; (3) the restriction’s bearing on the guards, other inmates, and the allocation
of prison resources; and (4) the existence of alternatives suggesting that the prison exaggerates
its concerns.” Munson v. Gaetz, 673 F.3d 630, 633 (7th Cir. 2012) (citing Turner, 482 U.S. at
89–91). The Supreme Court has held that “regulations affecting the sending of a ‘publication’ ...
to a prisoner must be analyzed under the Turner reasonableness standard. Such regulations are
‘valid if [they are] reasonably related to legitimate penological interests.’” Abbott, 490 U.S. at
413 (quoting Turner, 482 U.S. at 89) (alteration in original).
Whether John/Jane Doe properly rejected Plaintiff’s magazine based on legitimate
penological concerns cannot be determined at this early stage. The decision to withhold the
publication violates the First Amendment if the reasons for doing so run afoul of the Turner
reasonableness factors. Here, the stated reason for confiscating the magazine was that it depicted
penetration, presumably in violation of 20 Illinois Administrative Code § 525.230. 3 The Seventh
Circuit has determined that a prison may constitutionally withhold obscene or sexually explicit
magazines under this section. Smith v. Donohue, 1992 WL 238340, at *1 (7th Cir. Sept. 24,
1992). In Smith, the subject magazines were withheld pursuant to § 525.230 because they
depicted penetration. On Appeal, the Seventh Circuit adopted the district court’s application of
the four Turner factors to determine the constitutionality of § 525.230. Plaintiff claims, however,
that the magazine did not depict penetration. Plaintiff claims the magazine included depictions of
women in the nude and suggests that these depictions were permissible. This at least suggests
that the confiscation of Plaintiff’s magazine may have been arbitrary. Accordingly, reading the

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Although § 525.230 is referenced in the Complaint, it is not entirely clear whether the magazine was withheld
pursuant to this section of the Illinois Administrative Code.

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Complaint liberally and accepting Plaintiff’s allegations as true—which the Court must do at this
stage of the litigation—the Court finds that Count 1 merits further consideration.
Count 2
Plaintiff also asserts that confiscation of the magazine violates his right, under the
Fourteenth Amendment, to be free from deprivations of his property by state actors without due
process of law. In Procunier v. Martinez, 416 U.S. 396, 418-19 (1974), overruled on other
grounds by Thornburgh v. Abbott, 490 U.S. 401 (1989), the Supreme Court stated that the
decision to censor inmate mail must be accompanied by minimum procedural safeguards,
including notice of censorship, and an opportunity to protest to an official other than the one
conducting the censorship. In this case, Plaintiff received notice; John/Jane Doe informed
Plaintiff that the publication was being withheld for depictions of penetration. In addition,
Plaintiff filed grievances pertaining to the confiscation, which were resolved by officials other
than the John/Jane Doe. Plaintiff objects because he did not receive a written notice and because
he allegedly did not receive other protections provided for in the Illinois Administrative Code.
But failure to follow the Illinois Administrative Code’s requirements does not establish a
constitutional due process violation. 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).
Accordingly, Count 2 shall be dismissed without prejudice for failure to state a claim upon which
relief can be granted.
Count 3
The Complaint suggests that Plaintiff’s grievances pertaining to the confiscation were
mishandled and/or that Plaintiff was somehow denied full access to the grievance process. Prison

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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. Sheahan,
81 F.3d 1422, 1430 (7th Cir. 1996). Count 3 shall therefore be dismissed with prejudice for
failure to state a claim upon which relief may be granted.
IDENTIFICATION OF UNKNOWN DEFENDANT
Plaintiff will be allowed to proceed against John/Jane Doe. But this individual must be
identified with particularity before service of the Complaint can be made on him or her. Also,
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).
For that reason, Menard’s current warden, Jacqueline Lashbrook, in her official capacity,
shall be added to the docket for the purpose of responding to discovery (informal or formal)
aimed at identifying John/Jane Doe. Guidelines for discovery will be set by the United States
Magistrate Judge. Once the name of John/Jane Doe is discovered, Plaintiff must file a motion to
substitute the newly identified defendant in place of the generic designation in the case caption
and throughout the Complaint.

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INJUNCTIVE RELIEF
Warden Lashbrook is also the appropriate party with respect to Plaintiff’s request for
injunctive relief. Gonzales v. Feinerman, 663 F.3d 311, 315 (7th Cir. 2011). Accordingly,
Warden Lashbrook also will remain on the docket to carry out any injunctive relief that is
ordered.
DISPOSITION
The Clerk of the Court is DIRECTED to add Jacqueline Lashbrook (official capacity
only) as a defendant in order to respond to discovery aimed at identifying the unknown
defendant and to carry out any injunctive relief that is ordered.
IT IS HEREBY ORDERED that COUNT 1 shall PROCEED against JOHN/JANE
DOE.
IT IS FURTHER ORDERED that COUNT 2 is DISMISSED without prejudice for
failure to state a claim.
IT IS FURTHER ORDERED that COUNT 3 is DISMISSED with prejudice for
failure to state a claim.
IT IS FURTHER ORDERED that as to COUNT 1, the Clerk of Court shall prepare for
LASHBROOK: (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.
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 pay the full costs of formal
service, to the extent authorized by the Federal Rules of Civil Procedure.

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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 United States Magistrate
Judge Donald G. Wilkerson for further pre-trial proceedings. Further, this entire matter shall be
REFERRED to United States Magistrate Judge Donald G. 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 Section 1915, Plaintiff will be required to pay the full amount of the costs, despite the fact
that his application to proceed in forma pauperis has been granted. See 28 U.S.C.
§ 1915(f)(2)(A).
Finally, Plaintiff is ADVISED that he is under a continuing obligation to keep the
Clerk of Court and each opposing party informed of any change in his address; the Court will not
independently investigate his whereabouts. This shall be done in writing and not later than
7 days after a transfer or other change in address occurs. Failure to comply with this order will
cause a delay in the transmission of court documents and may result in dismissal of this action
for want of prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: May 10, 2018
____________________________
NANCY J. ROSENSTENGEL
United States District Judge

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