Gharrett v. Butler et al

Filing 11

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. IT IS HEREBY ORDERED that COUNT 1 shall PROCEED against BUTLER, JOHN DOES 1 and 2, JANE DOE 7, and COWAN and is DISMISSED without prejudice against JOHN DOES 3-6 for failure to state a c laim upon which relief may be granted. IT IS FURTHER ORDERED that JOHN DOES 3-6 are DISMISSED from this action for failure to state a claim upon which relief may be granted. IT IS ORDERED that as to COUNT 1, the Clerk of Court shall prepare for BUTLE R, COWAN, JOHN DOES 1 and 2 (once identified), and JANE DOE 7 (once identified): (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of a Summons), and (2) Form 6 (Waiver of Service of Summons). Signed by Judge Nancy J. Rosenstengel on 8/3/2018. (tkm)

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

DAVID GHARRETT, #M38621,
Plaintiff,
vs.
KIMBERLY BUTLER,
JEANNETTE COWAN,
JOHN DOES 1-6, and
JANE DOE 7,
Defendants.

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Case No. 18 cv–958 NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff David H. Gharrett, an inmate of the Illinois Department of Corrections currently
incarcerated at Pontiac Correctional Center, brings this action pursuant to 42 U.S.C. § 1983 for
deprivations of his constitutional rights that allegedly occurred at Menard Correctional Center
(“Menard”). In his First Amended Complaint, Plaintiff claims the defendants failed to protect
him from a serious risk of harm at the hands of other inmates in violation of the Eighth
Amendment. (Doc. 7). This case is now before the Court for a preliminary review of the First
Amended Complaint pursuant to 28 U.S.C. § 1915A.
Under Section 1915A, the Court is required to screen prisoner complaints to filter out
non-meritorious claims. See 28 U.S.C. § 1915A(a). Any portion of a 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, must be dismissed. 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). An action fails to state a claim upon which relief
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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). 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 First Amended Complaint and any supporting exhibits, the
Court finds this case shall proceed.
The First Amended Complaint
In his First Amended Complaint (Doc. 7), Plaintiff makes the following allegations: on
February 19, 2015, Plaintiff’s cellmate, Lason Elliot, told Plaintiff that if he did not leave the
cell, he would be “‘dealt’ with by him and others from his gang.” Id. That night, Elliot told
Plaintiff that when he left, “he better not come back or something would be waiting on him.” Id.
Plaintiff immediately began to fear for his safety and life. Id. Officer John Doe 5 came to get
Plaintiff for his psychiatrist appointment, and on the way, Plaintiff told him about the threats
Elliot had made. Id. Plaintiff also requested protective custody. Id. The officer told Plaintiff that
he would look into it during Plaintiff’s appointment, but after the appointment, John Doe 4 and
John Doe 5 told Plaintiff that he could go back to his cell or go to segregation. Id.
Plaintiff chose to go to segregation, and on the way, they encountered John Doe 3 who
gave Plaintiff the same ultimatum after being informed of the situation. (Doc. 7, pp. 7-8).
Plaintiff chose segregation, and after serving his time there, he immediately requested protective
custody. (Doc. 7, p. 8). Plaintiff was transferred to the Protective Custody Unit to await approval
of his request. Id. While he was waiting, he wrote multiple letters to Warden Butler, advising her
of his fears for his life and safety because of Elliot’s threats. Id.
After about a week, Plaintiff was interviewed by officer John Doe 1 and Jeannette

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Cowan. Id. They advised him that his request for protective custody would be denied, despite the
threats made by Elliot. Id. They advised Plaintiff that, despite the denial, they would make sure
that he was not placed in a cell with any gang members. Id. Plaintiff was taken to a cell near
where Elliot was housed and noticed that the person in his new cell was a gang member. (Doc. 7,
pp. 8-9). Plaintiff immediately advised Officer John Doe 6 that he had been told that he would
not be placed in a cell with a gang member, but John Doe 6 sent him back onto the gallery.
(Doc. 7, p. 9). On the way to his cell, another gang member stated to him: “You know you can’t
go in there with my king brother . . . if you go in there your [sic] not coming out.” Id.
Plaintiff once again advised John Doe 6 of the threat he received. Id. John Doe 6 placed
Plaintiff into a holding cell and told him that he would look into it. Id. He later told Plaintiff that
he would have to place him in segregation if he refused to go to his cell. Id. Plaintiff requested
protective custody but instead was transferred to segregation for disobeying a direct order. Id.
Upon his release from segregation, Plaintiff again requested protective custody and was
transferred to the Protective Custody Unit to await approval. Id. About a week later, Plaintiff was
interviewed by officers John Doe 2 and Jeannette Cowan. Id. He told them about the threats he
had received from Elliot and the other gang members, but they denied his request for protective
custody nonetheless. (Doc. 7, pp. 9-10). While he was waiting for approval, Plaintiff once again
sent multiple letters to Butler seeking approval for protective custody and explaining his fears.
(Doc. 7, p. 10). Plaintiff received a protective custody denial that was signed by Butler. Id.
Plaintiff filed a grievance about the denial and was seen by the Administrative Review
Board a few weeks later. Id. Though he fully explained the situation to Jane Doe 7, he was
denied protective custody once again and released back into the general prison population. Id. In
October 2016, Plaintiff was placed in a cell with another gang member. Id. In November 2016,

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Plaintiff was violently attacked by his cellmate. Id.
After the attack, Plaintiff was transferred to the Health Care Unit. (Doc. 7, p. 11). He was
then transferred to an outside hospital. Id. He received treatment and spent approximately two
weeks in Menard’s Health Care Unit before he was sent back to the same cell house where he
was attacked. Id. A few days after he returned to the cell house, a cell house worker informed
Plaintiff that certain gang members were going to “[mess] him up” if Plaintiff came out of his
cell. Id. A few hours later, a note was passed to Plaintiff from an inmate who identified himself
as a gang member. Id. The note indicated that the inmate was ordered to “handle the business”
with Plaintiff and that Plaintiff should go to protective custody to prevent it. Id. Plaintiff wrote
letters to Butler and the internal affairs officers advising them of the constant threats and
previous attack. Id. He also wrote to the cell house major and lieutenant explaining his situation.
Id. Plaintiff was finally approved for protective custody. Id.
Plaintiff seeks declaratory, monetary, and permanent injunctive relief. (Doc. 7, p. 15).
Discussion
Based on the allegations of the Complaint, the Court finds it convenient to designate a
single count in this pro se action. The parties and the Court will use this designation in all future
pleadings and orders, unless otherwise directed by a judicial officer of this Court. The
designation of this count does not constitute an opinion regarding its merit.
Count 1 –

Defendants failed to protect Plaintiff from serious risk of harm at
the hands of other inmates in violation of the Eighth Amendment.

As discussed in more detail below, Count 1 survives threshold review. Any other
intended claim that has not been recognized by the Court is considered dismissed without
prejudice as inadequately pleaded under the Twombly pleading standard.

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Count 1
“To adequately plead a failure-to-protect claim, a prisoner must allege that officials were
subjectively aware of and disregarded an objectively serious risk of harm to the prisoner.”
Cobian v. McLaughlin, 717 F. App’x 605, 610 (7th Cir. 2017) (citing Dale v. Poston, 548 F.3d
563, 569 (7th Cir. 2008)). Plaintiff has stated a claim under this standard against Butler, John
Doe 1, John Doe 2, Jane Doe 7, and Jeannette Cowan.
As to John Does 3, 4, 5, and 6, Plaintiff has failed to adequately allege that these
individuals, who gave Plaintiff the option to go to segregation when he requested protective
custody, violated his Eighth Amendment rights. The actions of these defendants did not result in
Plaintiff’s alleged injuries, as he was only attacked after he was returned to the general
population. Plaintiff also does not claim that these actions subjected him to an increased risk of
harm. See Thomas v. Illinois, 697 F.3d 612, 614–16 (7th Cir. 2012) (explaining that “hazard, or
probabilistic harm” could allow recovery). These defendants instead gave Plaintiff the option to
escape the dangerous situation he was in by refusing housing and going to segregation, after
which he was allowed to request protective custody and received a hearing on the issue.
Accordingly, Count 1 will proceed against Butler, John Doe 1, John Doe 2, Jane Doe 7,
and Jeannette Cowan, and it will be dismissed without prejudice against John Does 3-6.
Identification of Unknown Defendants
Plaintiff shall be allowed to proceed with Count 1 against Defendants John Doe 1 and 2
and Jane Doe 7. These defendants must be identified with particularity, however, before service
of the First Amended 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

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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, Warden
Butler is already named and shall be responsible for responding to discovery (formal or
otherwise) aimed at identifying these unknown defendants. Guidelines for discovery will be set
by the United States Magistrate Judge. Once the names of Defendants John Doe 1 and 2 and Jane
Doe 7 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.
Disposition
IT IS HEREBY ORDERED that COUNT 1 shall PROCEED against BUTLER,
JOHN DOES 1 and 2, JANE DOE 7, and COWAN and is DISMISSED without prejudice
against JOHN DOES 3-6 for failure to state a claim upon which relief may be granted.
IT IS FURTHER ORDERED that JOHN DOES 3-6 are DISMISSED from this action
for failure to state a claim upon which relief may be granted.
IT IS ORDERED that as to COUNT 1, the Clerk of Court shall prepare for BUTLER,
COWAN, JOHN DOES 1 and 2 (once identified), and JANE DOE 7 (once identified):
(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
amended complaint, and this Memorandum and Order to each defendant’s place of employment
as identified by Plaintiff. If a defendant fails to sign and return the Waiver of Service of
Summons (Form 6) to the Clerk within 30 days from the date the forms were sent, the Clerk shall
take appropriate steps to effect formal service on him or her, and the Court will require him or
her to pay the full costs of formal service, to the extent authorized by the Federal Rules.
With respect to a defendant who cannot be found at the work address provided by

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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 kept only by the Clerk and shall not be maintained in the court file or disclosed.
Service shall not be made on JOHN DOES 1 and 2 or JANE DOE 7 until 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.
Defendants are ORDERED to timely file an appropriate responsive pleading to the
amended complaint and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g).
Pursuant to Local Rule 72.1(a)(2), this action is REFERRED to United States Magistrate
Judge Donald G. Wilkerson for further pre-trial proceedings, including developing a plan for
discovery aimed at identifying the unknown defendants with particularity. Further, this entire
matter shall be REFERRED to Magistrate Judge Wilkerson for disposition, pursuant to Local
Rule 72.2(b)(3) 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,
regardless of whether 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 may

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result in dismissal of this action for want of prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: August 3, 2018

___________________________
NANCY J. ROSENSTENGEL
United States District Judge

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