Chittum v. Hare

Filing 10

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. Signed by Judge J. Phil Gilbert on 6/26/2018. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
BRANDON LEE CHITTUM, # 85895,
Plaintiff,
vs.
MICHAEL HARE,
Defendant.

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Case No. 18-cv-1167-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff, currently incarcerated at the Madison County Jail (“the Jail”), has brought this
pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff claims that Defendant has
repeatedly subjected him to sexual harassment, and retaliated against him for resisting. 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 nonmeritorious 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
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

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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, the Court finds that Plaintiff’s claims survive threshold review
under § 1915A.
The Complaint
Plaintiff has been an inmate at the Jail since December 2013. (Doc. 1, p. 6). Officer
Hare has allegedly been sexually harassing Plaintiff for several years. Hare’s conduct includes
“verbal sexual threats,” and Hare has also put his hands on Plaintiff’s body on “numerous
occasions for reasons of a sexual nature.” Id. Hare has also threatened to make Plaintiff’s life in
jail much harder if Plaintiff reported Hare’s harassment.
In December 2013, Hare began commenting on Plaintiff’s body, “cat-calling” him, and
making obscene gestures such as simulating oral sex. (Doc. 1, p. 6-7). In response to one such

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gesture, Plaintiff called Hare a “faggot,” and Hare then locked Plaintiff down for 48 hours. After
that, Plaintiff kept quiet in response to Hare’s threats and comments. (Doc. 1 p. 7).
Hare escalated his behavior to “actual sexual contact” such as singling Plaintiff out to
conduct a body search that would end with Hare fondling Plaintiff’s genitals, during which Hare
would whisper comments like, “you coming around yet?” (Doc. 1, p. 7). Many times, Hare
would slap Plaintiff’s buttocks and comment on his physique when he was out of range of
surveillance cameras. When Plaintiff yelled at him to stop, Hare would lock Plaintiff down in
his cell and tell him that life could be “easier” for him if he would “just let it happen.” Id.
Plaintiff had himself moved to the S.H.U., which had cameras in the cell, in an effort to
stay safe. However, Hare’s harassment continued, including an incident when he would not
allow Plaintiff to get his clothes after a shower unless Plaintiff lifted his towel and showed Hare
his genitals. (Doc. 1, p. 8). Plaintiff reluctantly did so, and Hare said, “I knew you’d come
around.” Id.
Plaintiff then moved to lockdown Block E-S, where Hare’s harassment became worse.
On many occasions while Plaintiff was out of his cell for recreation, Hare would enter the empty
cell, take Plaintiff’s pencils, and draw doodles on the wall depicting Hare and Plaintiff engaging
in sexual acts. (Doc. 1, p. 8). Plaintiff washed off the drawings and said nothing out of fear of
harsher treatment. Once, Hare walked in on Plaintiff while he was showering and commented on
Plaintiff’s genitals. (Doc. 1, p. 9). Plaintiff yelled at him to get out. When other inmates asked
what happened, Plaintiff was too embarrassed to say anything. Another time, Plaintiff was in the
E-S Dayroom alone when Hare walked in abruptly, pushed Plaintiff against the wall, grabbed
Plaintiff’s genitals, and tried to put his mouth on Plaintiff’s mouth. Plaintiff tried to get away,
but Hare squeezed his testicles tighter and said, “you’re gonna stop playing games with me

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soldier boy.” (Doc. 1, p. 9). Plaintiff describes this as the most scared he had ever been in his
life, and he was traumatized by the incident.
After a few weeks, Plaintiff was able to move to Block B-S where he would not be by
himself. Even so, a few weeks before Plaintiff filed this Complaint, he was last in line on the
way to church when Hare came up and told him, “It’s not over, I’m gonna get you one way or
another.” Id. Plaintiff believes that an aggravated battery charge that was filed against him on
May 7, 2018, was engineered by Hare to retaliate against Plaintiff after he refused to submit to
Hare’s “homosexual desires.” (Doc. 1, pp. 6, 9, 10). Hare had told Plaintiff that he wanted him
sexually, after Hare found out that Plaintiff is a combat veteran and had a high-profile case.
(Doc. 1, p. 10).
Plaintiff wrote a grievance on Hare because he refused to be his victim any more. He
alleges that Hare has targeted other inmates in the same way for years, and Hare needs to be
stopped. After filing the instant Complaint, Plaintiff submitted several exhibits (Docs. 6, 8)
indicating that an investigation had been opened on Hare, but that it was closed when Plaintiff’s
accusations were determined to be unfounded. (Doc. 6, p. 2). The exhibits inlcude statements
from other detainees describing similar problems with Hare.
As relief, Plaintiff wants Madison County to ensure that he and other inmates will be safe
from Hare’s “predatory sexual advancements.” (Doc. 1, p. 11).
Merits Review Pursuant to 28 U.S.C. § 1915A
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
designation of these counts does not constitute an opinion as to their merit. Any other claim that

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is mentioned in the Complaint but not addressed in this Order should be considered dismissed
without prejudice.
Count 1: Hare violated Plaintiff’s Fourteenth Amendment rights by subjecting
him to repeated unwanted sexual comments and physical contact of a sexual
nature;
Count 2: Hare retaliated against Plaintiff, in violation of the First Amendment,
when Plaintiff protested Hare’s comments and resisted Hare’s sexual advances.
Both claims shall proceed for further review herein.
Count 1 – Sexual Harassment
Plaintiff’s documents indicate that he is being held at the Jail as a pretrial detainee. (Doc.
1, p. 4; Doc. 6, p. 2; Doc. 8, p. 10). 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.
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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”).
Complaints over physical contact by a guard against an inmate are often characterized as
excessive force claims, such as where “rough or otherwise improper handling . . . causes
excessive pain or other harm.” Washington v. Hively, 695 F.3d 641, 643 (7th Cir. 2012).
However, “[a]n unwanted touching of a person’s private parts, intended to humiliate the victim
or gratify the assailant’s sexual desires, can [also] violate a prisoner’s constitutional rights
whether or not the force exerted by the assailant is significant.” Id. at 643 (citing Mays v.
Springborn, 575 F.3d 643, 650 (7th Cir. 2009); Calhoun v. DeTella, 319 F.3d 936, 939-40 (7th
Cir. 2003); Farmer v. Perrill, 288 F.3d 1254, 1260 (10th Cir. 2002); Freitas v. Ault, 109 F.3d
1335, 1338 (8th Cir. 1997); Boddie v. Schneider, 105 F.3d 857, 860-61 (2d Cir. 1997)). In fact,
some sexual offenses (such as voyeurism or indecent exposure) may involve no touching at all.
Washington, 695 F.3d at 643. The Seventh Circuit went on to observe, “Sexual offenses forcible
or not are unlikely to cause so little harm as to be adjudged de minimis, that is, too trivial to
justify the provision of a legal remedy. They tend rather to cause significant distress and often
lasting psychological harm.” Id.
Furthermore, where a guard is conducting a pat-down search on a prisoner, which
ordinarily does not violate a constitutional right even if the pat-down involves the groin area – if
the physical touching goes beyond what is necessary to search for contraband, a constitutional
claim may be stated. See Perales v. Bowlin, 644 F. Supp. 2d 1090, 1098 (N.D. Ind. 2009) (citing
Whitman v. Nesic, 368 F.3d 931, 934 (7th Cir. 2004)). See also Boddie v. Schnieder, 105 F.3d
857, 861 (2d Cir. 1997) (“Because sexual abuse by a corrections officer may constitute serious

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harm inflicted by an officer with a sufficiently culpable state of mind, allegations of such abuse
are cognizable as Eighth Amendment claims.”).
The incidents where Hare’s conduct did not include physical touching may also support
Plaintiff’s constitutional claim. See Beal v. Foster, 803 F.3d 356, 357 (7th Cir. 2015) (dismissal
of Eighth Amendment claim based on harassment was premature, where plaintiff alleged
psychological trauma to the extent of seeking mental health care; harassment was sexual in
nature and included physical conduct beyond the verbal harassment; and harassment arguably
placed plaintiff at greater danger of assault by other prisoners).
At this stage, Plaintiff’s allegations against Hare state a cognizable Fourteenth
Amendment claim for sexual abuse. Count 1 survives review under § 1915A and shall proceed.
Count 2 – Retaliation
Prison and jail 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

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568, 573 (7th Cir. 2000) (citation omitted).
In Plaintiff’s case, he protested on several occasions directly to Hare, objecting to Hare’s
harassing and sexually inappropriate or threatening conduct. Complaints such as this regarding
Plaintiff’s conditions of confinement would generally fall under the protection of the First
Amendment. Plaintiff alleges that more than once, Hare placed him on lockdown right after
Plaintiff spoke out against Hare’s behavior. Those incidents support a retaliation claim.
Plaintiff also alleges that Hare caused a “bogus” aggravated battery charge to be filed
against him, in retaliation for Plaintiff’s objections and refusal to submit to Hare’s sexual
requests. That aspect of Plaintiff’s retaliation claim may be curtailed by the doctrine outlined in
Younger v. Harris, 401 U.S. 37 (1971), which directs that a federal court should not interfere
with a pending state judicial proceeding. However, Plaintiff is not asking this Court to take any
action with respect to the pending aggravated battery charge – he is instead seeking injunctive
relief to keep him safe from future harassment and assaults by Hare.
At this stage, Plaintiff’s retaliation claim in Count 2 may also proceed for further
consideration.
Pending Motion
Plaintiff’s motion for recruitment of counsel (Doc. 3) shall be referred to the United
States Magistrate Judge for further consideration.
Disposition
The Clerk of Court shall prepare for Defendant HARE: (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 as identified by Plaintiff. If Defendant fails to

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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 to pay the full costs of formal service, to the
extent authorized by the Federal Rules of Civil Procedure.
If the Defendant cannot be found at the 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, nor disclosed by the Clerk.
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 a United States
Magistrate Judge for further pre-trial proceedings, which shall include a determination on the
pending motion for recruitment of counsel (Doc. 3).
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
independently investigate his whereabouts. This shall be done in writing and not later than 7

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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: June 26, 2018

s/J. Phil Gilbert
United States District Judge

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