Teen v. Massey

Filing 10

ORDER DISMISSING CASE with prejudice for failure to state a claim upon which relief may be granted. IT IS ORDERED that the unrelated claim(s) against SERGEANT BOUTNAM/BAJACK/BOUJACK and LIEUTENANT PUNNIER are improperly joined in this action and are DISMISSED without prejudice. Plaintiff may pursue relief against these individuals, if at all, in a separate action. Plaintiff is ADVISED that this dismissal shall count as one of his allotted strikes under the provisions of 28 U.S.C. § 19 15(g). Further, because two of Plaintiff's previously-filed lawsuits3 have also been dismissed pursuant to § 1915A, the dismissal of this case gives Plaintiff his third strike. 28 U.S.C. § 1915(g). Signed by Judge J. Phil Gilbert on 8/27/2018. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ANTRELL TEEN, #461504,
Plaintiff,
vs.
SGT. MASSEY,
SGT. BOUTNAM/BAJACK,
and LIEUTENANT PUNNIER,
Defendants.

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Case No. 18-cv-00994-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Now before the Court for preliminary review is the First Amended Complaint filed by
Plaintiff Antrell Teen on June 8, 2018. (Doc. 9). This case was severed from a civil rights
action that Plaintiff filed pursuant to 42 U.S.C. § 1983 to address deprivations of his
constitutional rights at St. Clair County Jail (“Jail”). Teen v. John Doe # 1, No. 18-cv-568-JPGRJD (S.D. Ill.). This severed case focuses on two claims against Sergeant Massey:
Count 6:

First Amendment retaliation claim against Massey for delaying Plaintiff’s
outgoing and incoming legal mail in November 2017 in an attempt to
interfere with Plaintiff’s pending lawsuit.

Count 7:

First Amendment retaliation claim and deliberate indifference to medical
needs claim against Massey for preventing Plaintiff from speaking to a
nurse about his medical issues on November 7, 2017.

(Doc. 2, pp. 7, 10; Doc. 2-1, p. 8). Neither claim survived preliminary review. (Doc. 7). Counts
6 and 7 were dismissed without prejudice on May 23, 2018, and Plaintiff was granted leave to replead both claims. Id. He responded by filing the First Amended Complaint. (Doc. 9).
In it, Plaintiff abandons Count 6 against Sergeant Massey and focuses on Count 7 instead.
(Doc. 9, p. 6). In addition, he brings an unrelated claim against two new defendants, Sergeant
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Boutnam/Bajack and Lieutenant Punnier. (Doc. 9, pp. 1, 6). For the reasons discussed below,
Counts 6 and 7 shall be dismissed with prejudice, and the new claim shall be dismissed without
prejudice to Plaintiff pursuing relief in a separate action. Finally, the dismissal of this case shall
result in the assessment of Plaintiff’s third “strike” under 28 U.S.C. § 1915(g).
Merits Review Under 28 U.S.C. § 1915A
Section 1915A provides that:
(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.
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 claim of
entitlement to relief must cross “the line between possibility and plausibility.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 557 (2007).
Discussion
Count 6 – Retaliation Claim Against Massey
Plaintiff sets forth no allegations in support of Count 6 in the First Amended Complaint.
(Doc. 9). He has abandoned the claim, which was dismissed as meritless at screening. (Doc. 7).
Because Count 6 still states no claim upon which relief may be granted, this claim shall be
dismissed with prejudice.

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Count 7 – Retaliation Claim against Massey
In support of Count 7,1 Plaintiff alleges that Sergeant Massey closed a chuck hole door in
AB-Block while he was using it to speak with a nurse about a medical concern on or around
November 7, 2017. (Doc. 9, p. 6). Sergeant Massey’s conduct allegedly “prevent[ed] and
delay[ed]” Plaintiff from obtaining “medical help” for an unspecified condition. Id. Plaintiff
characterizes Sergeant Massey’s conduct as retaliatory. Id.
Plaintiff set forth the same allegations against Sergeant Massey in the original Complaint
and the First Amended Complaint. (Doc. 2, p. 10; Doc. 2-1, p. 21; Doc. 9, p. 6). As the Court
already explained in the Order dismissing this claim, Plaintiff cannot rely on conclusory legal
assertions when bringing a retaliation claim under § 1983. (Doc. 7, pp. 5-6) (citing Brooks v.
Ross, 578 F.3d 574, 581 (7th Cir. 2009)). It is also not enough to simply state the cause of
action. Plaintiff is required to briefly describe the reason(s) for the retaliatory action and “the act
or acts claimed to have constituted retaliation.” Higgs v. Carver, 286 F.3d 437, 439 (7th Cir.
2002). In conclusory fashion, Plaintiff states that Sergeant Massey’s conduct was retaliatory.
(Doc. 9, p. 6). He vaguely alludes to his own “past complaints.” Id. However, Plaintiff does not
explain what “past complaints” prompted the sergeant’s conduct. Id. The allegations are too
threadbare to state a retaliation claim, even at this early stage.
Further, Count 7 does not articulate a constitutional claim against Sergeant Massey for
the denial of medical care—under the Eighth Amendment standard that is applicable to
convicted persons or the less demanding Fourteenth Amendment standard that is applicable to
pretrial detainees. See Miranda v. County of Lake, -- F.3d --, 2018 WL 3796482 (7th Cir. Aug.
10, 2018) (applying an “objective reasonableness” standard to the medical claim of a pretrial
detainee under Fourteenth Amendment instead of the deliberate indifference standard that is
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In the First Amended Complaint, Plaintiff refers to this claim as “Count 1.” (Doc. 9, p. 6).

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applicable to Eighth Amendment claims brought by prisoners). Plaintiff draws no connection in
the First Amended Complaint between the sergeant’s conduct (i.e., slamming the chuck hole
door) and his own need for medical care or access to treatment. (Doc. 9, p. 6). He describes no
medical condition (urgent or otherwise), identifies no treatment that was obvious or necessary,
and points to no actual impediment to his receipt of timely medical care. Id. His allegations do
not satisfy the pleading standards described in Twombly or state a plausible claim. Count 7 does
not survive screening against Sergeant Massey and shall also be dismissed with prejudice.
New Claim Against Boutnam/Bajack/Boujack
For the first time in the First Amended Complaint, Plaintiff adds a claim2 against a new
group of defendants (Sergeant Boutnam/Bajack/Boujack and Lieutenant Punnier) for transferring
him to A-Block, where the cell doors do not lock. (Doc. 9, p. 6). Plaintiff complained about his
safety concerns regarding A-Block to Sergeant “Boutnam/Bajack/Boujack” and Lieutenant
Michael Punnier, when he was previously housed there. Id. He does not describe their response
to his complaints or explain their role in a transfer decision. Id. Plaintiff simply characterizes
the decision to transfer him back to A-Block as retaliatory. Id.
Plaintiff was not granted leave to bring this new claim in his First Amended Complaint.
Moreover, the claim is not properly joined with Counts 6 and 7 against Sergeant Massey. See
FED. R. CIV. P. 18, 20-21. Rule 20(a)(2) provides that multiple defendants may be joined in one
action, only if “any right to relief is asserted against them jointly, severally, or in the alternative
with respect to or arising out of the same transaction, occurrence, or series of transactions or
occurrences” and “any question of law or fact common to all defendants will arise in the action.”
FED. R. CIV. P. 20(a)(2)(A)-(B). Rule 18 allows a party asserting a claim to join, as independent
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Plaintiff refers to this claim as “Count 2,” probably because the Court inadvertently referred to it as
“Count 2” and “Count 7” in the Order dated May 23, 2018. Id. Consistent with the Memorandum and
Severance Order, the claim shall be referred to as Count 7 herein.

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or alternative claims, as many claims as it has against an opposing party. FED. R. CIV. P. 18.
Finally, Rule 21 authorizes the Court “at any time, on just terms” to add or drop a party and/or
sever any claim against a party. FED. R. CIV. P. 21.
Rules 18, 20, and 21 give district courts “considerable flexibility” in managing civil
litigation. UWM Student Ass’n v. Lovell, 888 F.3d 854, 863 (7th Cir. 2018). However, this
flexibility is not unlimited. Id. The Seventh Circuit has repeatedly emphasized that “[u]nrelated
claims against different defendants belong in different suits.” Id. at 863 (quoting George v.
Smith, 507 F.3d 605, 607 (7th Cir 2007)). This is not only to ensure that prisoners pay the
required filing fees for each suit but also to prevent them from dodging the assessment of a
“strike” under 28 U.S.C. § 1915(g). George, 507 F.3d at 607. By bringing this new claim
involving different defendants, a different transaction or occurrence, and a different time period,
Plaintiff appears to be doing just that—attempting to avoid a filing fee and a potential strike.
The remedy for misjoinder is severance or dismissal without prejudice. Lovell, 888 F.3d
at 863. In this case, the Court finds that the most appropriate remedy is dismissal without
prejudice. If Plaintiff wishes to pursue relief against Sergeant Boutnam/Bajack/Boujack and
Punnier, he must do so in a separate action.
Disposition
IT IS HEREBY ORDERED that this action, which consists only of COUNTS 6 and 7,
is DISMISSED with prejudice for failure to state a claim upon which relief may be granted.
IT

IS

ORDERED

that

the

unrelated

claim(s)

against

SERGEANT

BOUTNAM/BAJACK/BOUJACK and LIEUTENANT PUNNIER are improperly joined in
this action and are DISMISSED without prejudice. Plaintiff may pursue relief against these
individuals, if at all, in a separate action. See FED. R. CIV. P. 18, 20-21.

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Plaintiff is ADVISED that this dismissal shall count as one of his allotted “strikes” under
the provisions of 28 U.S.C. § 1915(g). Further, because two of Plaintiff’s previously-filed
lawsuits3 have also been dismissed pursuant to § 1915A, the dismissal of this case gives Plaintiff
his third “strike.” 28 U.S.C. § 1915(g). Accordingly, if Plaintiff seeks to file any future civil
action while he is a prisoner, he will no longer be eligible to pay a filing fee in installments using
the in forma pauperis provisions of § 1915(a) and (b), unless he can establish that he is “under
imminent danger of serious physical injury.” Id. If Plaintiff cannot make the necessary showing
of imminent physical danger, he shall be required to pre-pay the full filing fee for any future
lawsuit he may file while incarcerated, or face dismissal of the suit. Plaintiff’s obligation to pay
the filing fee for this action was incurred at the time the action was filed, thus the filing fee of
$350.00 remains due and payable. See id.; Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998).
If Plaintiff wishes to appeal this Order, he may file a notice of appeal with this Court
within thirty days of the entry of judgment. FED. R. APP. 4(a)(1)(A). If Plaintiff does choose to
appeal, he will be liable for the $505.00 appellate filing fee irrespective of the outcome of the
appeal. See FED. R. APP. 3(e); 28 U.S.C. § 1915(e)(2); Ammons v. Gerlinger, 547 F.3d 724, 72526 (7th Cir. 2008); Sloan v. Lesza, 181 F.3d 857, 858-59 (7th Cir. 1999); Lucien, 133 F.3d at
467. If the appeal is found to be nonmeritorious, Plaintiff may also incur another “strike.”
The Clerk shall CLOSE THIS CASE and enter judgment accordingly.
IT IS SO ORDERED.
DATED: August 27, 2018
s/J. Phil Gilbert
J. PHIL GILBERT
United States District Judge
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Teen v. Peebles, No. 17-cv-00593-JPG (S.D. Ill., dismissed Sept. 29, 2017) (strike 1); Teen v. Cruse,
No. 18-cv-01317-SMY (S.D. Ill. dismissed July 20, 2018) (strike 2).

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