Teen v. Smith

Filing 7

ORDER REFERRING CASE to Magistrate Judge Reona J. Daly. Signed by Judge J. Phil Gilbert on 5/10/2018. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ANTRELL TEEN, # 461504,
Plaintiff,
vs.
R. SMITH, and
SGT. SHUBERG,
Defendant.

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Case No. 18-cv-995-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
In Teen v. John Doe #1, Case No. 18-cv-568-JPG-RJD (S.D. Ill. Mar. 13, 2018), Plaintiff
Antrell Teen, a detainee in St. Clair County Jail, brought suit for deprivations of his
constitutional rights pursuant to 42 U.S.C. § 1983. Pursuant to George v. Smith, 507 F.3d 605
(7th Cir. 2007), a claim against Defendants Smith and Shuberg was severed from that initial
action to form the basis for this action, Case No. 18-cv-995-JPG.
This case is now before the Court for a preliminary review of that claim 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.”

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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).
After fully considering the relevant allegations in Plaintiff’s Complaint, the Court
concludes that this action shall proceed past the threshold stage.
The Complaint
The allegations in Plaintiff’s Complaint (Doc. 2) relevant to this severed action are as
follows: on or about January 25, 2018, C/O Smith (who Plaintiff sued in a 2017 civil action
involving a boil order), targeted Plaintiff with a disciplinary action. (Doc. 2, pp. 7-8; Doc. 2-1,
pp. 19-20).

Smith falsely claimed that Plaintiff interrupted an investigation and was

disrespectful. As a result, Plaintiff was moved to a restrictive area and then to L-Block. This
punishment was much harsher than the typical outcome for a disciplinary ticket. Although
Plaintiff contested the matter as retaliatory and offered witnesses who testified that Smith had not
been truthful, Sgt. Shoeberg (a/k/a Shuberg)1 refused to investigate the matter. Plaintiff alleges
that the disciplinary record will negatively affect his classification in the future. Further,
Shuberg/Shoeberg punished Plaintiff excessively by restricting his commissary beyond the date
that the restriction should have been lifted. (Doc. 2, p. 8).

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Plaintiff spells this Defendant’s name as “Shoeberg” in the body of the Complaint, but identifies him as “Shuberg”
in his list of the parties. (Doc. 2, p. 2).

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Discussion
In its Severance Order (Doc. 1), the Court designated the following count to be severed
into this pro se action. The parties and the Court will continue to use this designation in all future
pleadings and orders, unless otherwise directed by a judicial officer of this Court.
Count 8 –

First Amendment retaliation claims against Smith from bringing a false
disciplinary charge on January 25, 2018, and against Shuberg/Shoeberg
for refusing to investigate the false charge and imposing excessive
discipline, after Plaintiff sued Smith.

As discussed in more detail below, Count 8 will proceed past threshold.
Count 8
To establish a claim of retaliation, Plaintiff “must show that he engaged in a protected
activity, he suffered a deprivation likely to prevent future protected activities, and there was a
causal connection between the two.” Felton v. Huibregtse, 525 F. App'x 484, 486 (7th Cir.
2013) (citing Watkins v. Kasper, 599 F.3d 791, 794 (7th Cir. 2010); Bridges v. Gilbert, 557 F.3d
541, 546 (7th Cir. 2009)). Plaintiff’s Complaint suggests that both Smith and Shuberg retaliated
against him for complaints of his by charging him falsely, refusing to investigate the charge, and
imposing excessive discipline on him. These deprivations could conceivably deter protected
activities. Count 8 will therefore proceed against Smith and Shuberg.
Disposition
IT IS HEREBY ORDERED that COUNT 8 shall PROCEED against SMITH and
SHUBERG.
IT IS FURTHER ORDERED that the Clerk of Court shall prepare for SMITH and
SHUBERG: (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 each defendant’s place of
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employment as identified by Plaintiff. If any 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 that defendant, and the Court will
require that defendant pay the full costs of formal service, to the extent authorized by the Federal
Rules of Civil Procedure.
With respect to a defendant who no longer can be found at the work 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. Address information shall not be maintained in the court file
or disclosed by the Clerk.
Defendants are 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.

Further, this entire matter shall be

REFERRED to a 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 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

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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

s/J. Phil Gilbert
U.S. District Judge

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