Teen v. Nichols et al

Filing 7

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Signed by Judge J. Phil Gilbert on 5/23/2018. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ANTRELL TEEN, # 461504,
Plaintiff,
vs.
SGT. NICHOLS,
and KEMPT,
Defendants.

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Case No. 18-cv-997-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff is a pretrial detainee at the St. Clair County Jail (“the Jail”). He originally
brought this civil rights action on March 13, 2018, when it was filed as Teen v. Smith, et al., Case
No. 18-568-JPG-RJD. After screening the Complaint, the Court severed a number of Plaintiff’s
claims from the original case into separate actions. (Doc. 1). The instant case contains Counts 4
and 10, which were described as follows:
Count 4: First Amendment retaliation claim against Nichols for opening and
reading Plaintiff’s legal mail, after Plaintiff attempted to file case(s) in court while
Plaintiff was housed on AB-Block;
Count 10: Fourteenth Amendment deliberate indifference claim, and First
Amendment retaliation claim, against Kempt and Nichols for allowing a mentally
ill inmate to remain improperly housed in L-Block in February 2018, resulting in
injury to Plaintiff.
This case is now before the Court for a preliminary review of the Complaint pursuant to
28 U.S.C. § 1915A. 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

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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, some of the claims in this action survive threshold review
under § 1915A.

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The Complaint
The portions of the Complaint which relate to Counts 4 and 10 are summarized as
follows.
Plaintiff began to submit captain complaints at the Jail concerning several conditions
there, beginning in January 2016. Plaintiff has also filed previous lawsuits against various Jail
officials during his imprisonment. (Doc. 2, p. 4). Plaintiff asserts that he has been subjected to
retaliatory actions as a result of these complaints and lawsuits.
Plaintiff’s first claim against Nichols (Count 4) arose while Plaintiff was housed on the
AB-Block of the Jail. Plaintiff had been housed on at least 3 other wings of the Jail before he
was moved to AB-Block in December 2016. (Doc. 2, p. 6). Before Plaintiff arrived at ABBlock, he had been under a lockdown in H-Block, where he was unable to use the law library.
After Plaintiff was transferred to AB-Block, he regained some access to the law library,
and found information about the district court. (Doc. 2, p. 6). He claims that when jail staff
noticed “legal mail” coming to Plaintiff, the “interruption began.” Id. Unnamed staff opened
Plaintiff’s legal mail before giving it to him, and he witnessed Sgt. Nichols opening and reading
his legal mail. Id. Plaintiff asserts that the opening of his legal mail was retaliatory, and
“intended to inhibit [his] pursuit for help.” Id.
Plaintiff’s claim designated as Count 10 arose during February 2018, while Plaintiff was
housed on L-Block at the Jail. Plaintiff states that on February 3, 2018, officers “incorrectly
housed” a mentally ill inmate on L-Block, instead of on the wing (I-Block) where inmates with
mental illnesses are normally placed. (Doc. 2, pp. 9-10). Plaintiff asserts that he has training and
9 years of experience in caring for mentally ill persons, which enabled him to recognize the
inmate’s mental condition. Plaintiff informed C/O Kempt of the situation, but Kempt “refused to

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acknowledge the issue.” (Doc. 2, p. 10). Kempt refused to supply Plaintiff with captain
complaint forms, and would not summon a supervisor after Plaintiff requested to talk to one.
The mentally ill inmate proceeded to talk of stabbing others or himself, which caused
other prisoners to feel threatened. Eventually a fight broke out which involved Plaintiff, the
mentally ill inmate, and other inmates. Plaintiff attempted to defuse the situation, and Plaintiff’s
hand was injured during the incident, drawing blood. At 8:30 p.m. on February 9, 2018 (which
was apparently the date of the fight), Plaintiff submitted a captain complaint. Sgt. Nichols was
the supervisor on duty that night, but Nichols did nothing about the safety concerns.
Much later, on or about February 27, 2018, Sgt. Collins moved the mentally ill inmate to
I-Block with the other mentally ill prisoners. Plaintiff concludes that Kempt and Nichols, who
disregarded his concerns, did so out of retaliation. (Doc. 2, p. 10).
Plaintiff seeks compensatory, punitive, and special damages for the violations of his
rights. (Doc. 2, p. 11).
Merits Review Pursuant to 28 U.S.C. § 1915A
For clarity, the Court shall continue to refer to the claims in this action as they were
numbered in the original case.
Count 4: First Amendment retaliation claim against Nichols for opening and
reading Plaintiff’s legal mail, after Plaintiff attempted to file case(s) in court while
Plaintiff was housed on AB-Block;
Count 10: Fourteenth Amendment deliberate indifference claim, and First
Amendment retaliation claim, against Kempt and Nichols for allowing a mentally
ill inmate to remain improperly housed in L-Block in February 2018, resulting in
injury to Plaintiff.

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Count 3 – Retaliation – Sgt. Nichols
Jail and 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 deter a person of “ordinary firmness” from engaging in
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. See McKinley v.
Schoenbeck, __ F. App’x __, No. 17-1709, 2018 WL 1830942 at *3 (7th Cir. Apr. 17, 2018)
(quoting Surita v. Hyde, 665 F.3d 860, 878-79 (7th Cir. 2011)); 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 omitted).
Plaintiff asserts that when he began his attempts in December 2016 or early 2017 to seek
redress in the courts, he started to receive “legal mail.” He does not describe whether this “legal
mail” came from the court clerk or from law firms or attorneys. The identity of the sender would
determine whether or not jail officials had a right to open and inspect an envelope outside
Plaintiff’s presence. Corrections officials may legitimately open non-privileged incoming mail
as a security measure, to keep contraband out of the institution. Wolff v. McDonnell, 418 U.S.
539, 576 (1974). Correspondence from a court to a litigant is considered a public document, and
an inmate’s right to confidential lawyer-client communication is not violated if such a letter is
opened before delivery to the inmate. See Antonelli v. Sheahan, 81 F.3d 1422, 1431 (7th Cir.

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1996); Martin v. Brewer, 830 F.2d 76, 78 (7th Cir. 1987). However, mail from an attorney that
is clearly marked as confidential is entitled to greater protection, and should be opened only in
the presence of the inmate. Kaufman v. McCaughtry, 419 F.3d 678, 685-86 (7th Cir. 2005); see
also Wolff, 418 U.S. at 576.
In this case, Plaintiff has not asserted that Jail officials hindered his access to the courts
by improperly opening attorney-client mail. Instead, he articulates a retaliation claim, stating
that Nichols (and possibly other unidentified officials) opened what he characterizes as “legal
mail” with the intention to deter Plaintiff from engaging in the very First Amendment activity
that generated that mail – that is, his efforts to seek redress in the courts. Notably, even if a
Defendant’s action (such as opening non-privileged mail) would not be unconstitutional in and
of itself, if the action was taken in retaliation for the exercise of a constitutionally protected right,
then it may support a § 1983 claim. See Bridges v. Gilbert, 557 F.3d 541, 552 (7th Cir. 2009)
(discussing Howland v. Kilquist, 833 F.2d 639, 644 (7th Cir. 1987) (“[A]n act in retaliation for
the exercise of a constitutionally protected right is actionable under Section 1983 even if the act,
when taken for different reasons, would have been proper.”)).
The ultimate issue in Plaintiff’s retaliation claim is whether he experienced an adverse
action or actions that would likely deter First Amendment activity in the future, and if the First
Amendment activity was “at least a motivating factor” in the Defendant’s decision to take the
retaliatory action. Bridges, 557 F.3d at 551. This is a question that cannot be resolved at the
pleadings stage of this case. Therefore, the retaliation claim in Count 4 survives review under
§ 1915A and shall proceed for further consideration against Nichols.

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Count 10 – Deliberate Indifference & Retaliation – Kempt & Nichols
The Due Process Clause of the Fourteenth Amendment governs claims for
unconstitutional conditions of confinement brought by pretrial detainees. See Smith v. Dart, 803
F.3d 304 (7th Cir. 2015); Budd v. Motley, 711 F.3d 840, 842 (7th Cir. 2013); Rice ex rel. Rice v.
Corr. Med. Servs., 675 F.3d 650, 664 (7th Cir. 2012); Forest v. Prine, 620 F.3d 739, 744-45 (7th
Cir. 2010); Klebanowski v. Sheahan, 540 F.3d 633, 637 (7th Cir. 2008). The Eighth Amendment
governs claims for convicted prisoners. Id. As the Seventh Circuit explained:
[A] pretrial detainee is entitled to be free from conditions that amount to
“punishment,” Bell v. Wolfish, 441 U.S. 520, 535 (1979), while a convicted
prisoner is entitled to be free from conditions that constitute “cruel and unusual
punishment.” Farmer v. Brennan, 511 U.S. 825, 832 (1994). In both cases,
however, the alleged conditions must be objectively serious enough to amount to
a constitutional deprivation, and the defendant prison official must possess a
sufficiently culpable state of mind.
Smith, 803 F.3d at 309.
The Seventh Circuit has historically applied the same standards to claims arising under
the Fourteenth Amendment (detainees) and Eighth Amendment (convicted prisoners).

See

Smith, 803 F.3d at 309-10; Grieveson v. Anderson, 538 F.3d 763, 771-72, 777-79 (7th Cir.
2008); Ayoubi v. Dart, No. 17-1662, 2018 WL 1445986, at *3 (7th Cir. March 23, 2018)
(unpublished) (Fourteenth Amendment and Eighth Amendment standards “are virtually
indistinguishable”). Under the Eighth Amendment, two elements are required to establish a
constitutional violation for conditions of confinement in prison. First, an objective element
requires a showing that the conditions deny the inmate “the minimal civilized measure of life’s
necessities,” creating an excessive risk to the inmate’s health or safety. Farmer, 511 U.S. at 834.
The second requirement is a subjective element – establishing a defendant’s culpable state of
mind, which is deliberate indifference to a substantial risk of serious harm to the inmate from

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those conditions. Farmer, 511 U.S. at 837, 842. To satisfy this element, a plaintiff must show
that “the defendant ‘possess[ed] a purposeful, a knowing, or possibly a reckless state of mind’
with respect to the defendant’s actions (or inaction) toward the plaintiff.” Davis v. Wessel, 792
F.3d 793, 801 (7th Cir. 2015) (quoting Kingsley v. Hendrickson, __U.S.__, 135 S. Ct. 2466,
2472 (2015)).
Plaintiff’s particular claim focuses on the Defendants’ failure to protect him from the
harm he suffered when the mentally ill inmate’s behavior triggered a fight in the cellblock. The
Supreme Court has held that “prison officials have a duty . . . to protect prisoners from violence
at the hands of other prisoners.” Farmer v. Brennan, 511 U.S. 825, 833 (1994) (internal citations
omitted); see also Pinkston v. Madry, 440 F.3d 879, 889 (7th Cir. 2006). However, not every
harm caused by another inmate translates into constitutional liability for the corrections officers
responsible for the prisoner’s safety. Farmer, 511 U.S. at 834. In order for a plaintiff to succeed
on a claim for failure to protect, he must show that he is incarcerated under conditions posing a
substantial risk of serious harm, and that the defendants acted with “deliberate indifference” to
that danger. Id.; Pinkston, 440 F.3d at 889. A plaintiff also must prove that prison officials were
aware of a specific, impending, and substantial threat to his safety, often by showing that he
complained to prison officials about a specific threat to his safety. Pope v. Shafer, 86 F.3d 90, 92
(7th Cir. 1996). In other words, Defendants had to know that there was a substantial risk that
those who attacked Plaintiff would do so, yet failed to take any action.

See Sanville v.

McCaughtry, 266 F.3d 724, 733-34 (7th Cir. 2001). Conduct that amounts merely to negligence
or inadvertence is not enough to state a claim. Pinkston, 440 F.3d at 889 (discussing Watts v.
Laurent, 774 F.2d 168, 172 (7th Cir. 1985)).
In Plaintiff’s case, he complained to Kempt about the fact that the mentally ill inmate was

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housed on L-Block, instead of the wing reserved for inmates with mental illness. The Complaint
does not disclose exactly what information Plaintiff conveyed to Kempt at that time. It is also
unclear whether Plaintiff informed Kempt or any other official of the inmate’s remarks about
stabbing or any other threatening comments or behavior. The fight which injured Plaintiff
occurred 6 days after the inmate was placed in Plaintiff’s cellblock. (Doc. 2, p. 10). Plaintiff
may have a viable claim against Kempt, if Kempt was sufficiently informed about the danger
posed or threats conveyed by the inmate before the fight occurred. The current Complaint,
however, does not provide enough information to support a claim against Kempt for deliberate
indifference to a known threat, as opposed to a merely negligent response to Plaintiff’s concerns.
The Complaint also does not support a claim against Nichols for failure to protect
Plaintiff from the injury he suffered. Plaintiff indicates that Nichols would have received his
captain complaint on the night that the fight broke out – but Plaintiff submitted his complaint
only after the injury occurred. (Doc. 2, p. 10). Based on these facts, Nichols was not made
aware of any danger or threat to Plaintiff’s safety from the mentally ill inmate in advance of the
incident, at a time when he could have taken action to prevent it. He therefore cannot be held
liable for deliberate indifference to the danger posed by the inmate, or in other words, for failing
to protect Plaintiff from the injury he suffered on February 9, 2018.
Turning to the retaliation portion of Count 10, Plaintiff alleges that his complaints about
the improper housing of the mentally ill prisoner fell on deaf ears. He states, “this disregard by
officers involved in civil complaints seem[s] to be obviously retaliatory.” (Doc. 2, p. 10). While
Plaintiff does not point to a specific complaint or lawsuit that allegedly triggered the retaliatory
action of ignoring Plaintiff’s concerns about the mentally ill inmate, earlier in his statement of
claim he referenced the fact that he “is involved in multiple prison condition suits.” (Doc. 2, p.

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4). This Court’s electronic docket reflects that at the time that Nichols and Kempt allegedly
retaliated by disregarding Plaintiff’s concerns, Plaintiff had 5 civil lawsuits pending in this
Court. Nichols was named as a Defendant in one case which was pending in February 2018,
Teen v. Kenny, et al., Case No. 17-cv-918-JPG-RJD (opened Aug. 28, 2017).1 Given this
background, and liberally construing his Complaint, Plaintiff 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 omitted).
Accordingly, the retaliation portion of Plaintiff’s claim in Count 10 against Nichols and
Kempt may proceed for further consideration. The portion of Count 10 that claims Kempt and
Nichols failed to protect Plaintiff from a known risk of harm, however, shall be dismissed
without prejudice at this time, for the reasons explained above.
Disposition
COUNT 10 shall proceed only on the retaliation portion of the claim, against both
Nichols and Kempt.

The portion of COUNT 10 alleging that Kempt and Nichols were

deliberately indifferent and failed to protect Plaintiff from a known risk of harm is DISMISSED
without prejudice for failure to state a claim upon which relief may be granted.
In order for COUNT 4 and the retaliation portion of COUNT 10 to proceed, the Clerk of
Court shall prepare for Defendants NICHOLS and KEMPT: (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, the Memorandum and
Order at Doc. 1, and this Memorandum and Order to each Defendant’s place of employment as
1

The case against Nichols was severed from an action originally filed on June 5, 2017, captioned Teen v.
St. Clair Cnty. Jail, Case No. 17-cv-594-JPG-SCW. Two other claims were also severed from that case:
Teen v. Smith, et al., Case No. 17-cv-916-JPG-DGW, and Teen v. Lazante, et al., Case No. 17-cv-929JPG-RJD. Plaintiff filed another case on January 4, 2018: Teen v. Brandy, et al., Case No. 18-cv-13JPG-DGW.

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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 that Defendant, and the Court will require that
Defendant to 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 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

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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 23, 2018

s/J. Phil Gilbert
United States District Judge

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