Decker v. Zabor et al

Filing 7

IT IS HEREBY ORDERED that Plaintiff's Complaint (Doc. 1), including COUNT 1, is DISMISSED without prejudice for failure to state a claim upon which relief may be granted. IT IS FURTHER ORDERED that Defendants ERIC ZABOR, BEN KELLY, C/O MASON, and NEAL ROHLFING are DISMISSED without prejudice because the Complaint fails to state a claim for relief against these defendants. Plaintiff is GRANTED leave to file a First Amended Complaint on or before August 30, 2018, if he wishes to pursue his claims in this action. Should Plaintiff fail to file an amended complaint within the allotted time, dismissal of the action will become with prejudice. (Amended Pleadings due by 8/30/2018). Signed by Judge J. Phil Gilbert on 8/2/2018. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOSEPH DECKER,
Plaintiff,
vs.
ERIC ZABOR,
BEN KELLY,
C/O MASON,
and NEAL ROHLFING,
Defendants.

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Case No. 18-cv-01295-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff Joseph Decker, who is currently detained at Randolph County Jail (“Jail”),
brings this action pursuant to 28 U.S.C. § 1331 and Bivens v. Six Unknown Named Agents,
403 U.S. 388 (1971). (Doc. 1). In the Complaint, Plaintiff claims that his constitutional rights
were violated when a Waterloo Police Department officer sexually harassed him at Monroe
County Jail. (Doc. 1, p. 5). Plaintiff seeks monetary damages against Officer Zabor and several
other officials at Monroe County Jail. (Doc. 1, p. 6).
The Complaint is now subject to screening under 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.

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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 any reasonable person would find meritless. 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. 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 Complaint
In the Complaint, Plaintiff alleges that he was harassed on a single occasion by Officer
Eric Zabor, who is employed by the Waterloo Police Department. (Doc. 1, p. 5). On March 21,
2018, Officer Zabor served Plaintiff with a federal indictment at Monroe County Jail. Id. After
completing service of the indictment on Plaintiff, Officer Zabor grabbed his own “private area in
a very sexual way” and told Plaintiff that he “would be fucking [him] real soon.” Id. Plaintiff
describes Officer Zabor as the “main officer” involved in his case. Id. A Waterloo Police
Department Citizen’s Complaint Form submitted along with the Complaint identifies Officers
“Ben” and “Mason” as witnesses to the incident. (Doc. 1, p. 7).
The following day, Plaintiff was given a bond reduction at a hearing in Monroe County.
(Doc. 1, p. 8). When he returned to the Jail, Plaintiff learned that State’s Attorney Chris
Hitzemann had contacted the Jail and instructed the officers “not to let [Plaintiff] make bail”
because of a “federal hold.” Id. The Jail supervisor later informed Plaintiff that there was no
federal hold, and he was “free to make bail.” Id.

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Plaintiff now brings a claim against Officer Zabor for sexual harassment and against
State’s Attorney Hitzemann for unspecified constitutional violations. (Doc. 1, p. 5). He seeks
monetary relief that includes reimbursement for the cost of “any medical bills for therapy or
counseling.” (Doc. 1, p. 6). In the Complaint, he also names three other Monroe County Jail
officials as defendants, including C/O Kelly, C/O Mason, and Sheriff Rohlfing. (Doc. 1, p. 1).
Discussion
The Court deems it appropriate to organize the pro se Complaint into the following
enumerated count to facilitate the orderly management of future proceedings in this case and in
accordance with the objectives of Federal Rules of Civil Procedure 8(e) and 10(b):
Count 1 -

Sexual harassment claim against Defendants arising from Officer
Zabor’s sexual gesture and threatening comment to Plaintiff at
Monroe County Jail on March 21, 2018.

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 does not constitute an
opinion regarding the merits of the above-referenced claim. Any claims that are encompassed
by the allegations in the Complaint but not identified above are considered dismissed
without prejudice from this action for failure to meet the Twombly pleading standards.
Bivens or Section 1983
Plaintiff filed this action pursuant to 28 U.S.C. § 1331 and Bivens v. Six Unknown Named
Agents, 403 U.S. 388 (1971), but the case is likely governed by 42 U.S.C. § 1983. Bivens actions
are generally brought against federal employees. Id.

Section 1983 governs constitutional

claims against persons acting under color of state law. See 42 U.S.C. § 1983.
Plaintiff brings constitutional claims against officials at a local jail. (Doc. 1). Normally,
such claims are governed by § 1983, and this is true even when a plaintiff brings the suit against

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local officials for violations of his rights while he is on a federal holdover at a local facility. See,
e.g., Belbachir v. County of McHenry, 726 F.3d 975, 978 (7th Cir. 2013) (collecting cases).
Although a contract between the federal and local facility can transform a state actor into a
federal actor, this is the exception to the rule. Most cases involving an inmate on a federal
holdover proceed under § 1983. See id. (allowing claim of administrator of estate of federal
pretrial detainee to proceed against county and county jail officials under § 1983 after noting that
contract between the federal government and county jail that housed federal and nonfederal
inmates did not transform the officials into federal actors).
Applicable Legal Standard
The applicable legal standard for Plaintiff’s sexual harassment claim depends on his legal
status on the date he was sexually harassed. Different legal standards apply to claims brought by
an arrestee (Fourth Amendment), pretrial detainee (Fourteenth Amendment), and prisoner
(Eighth Amendment). See Currie v. Chhabra, 728 F.3d 626 (7th Cir. 2013). The Complaint
suggests that Plaintiff was a pretrial detainee on the date of the alleged harassment.1
The Fourteenth Amendment Due Process Clause governs claims of 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 brought by convicted prisoners. Id. The Seventh Circuit has explained the difference
between the applicable legal standards, as follows:

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Whether Plaintiff was an arrestee, pretrial detainee, or convicted prisoner on March 21, 2018, can be
sorted out as the case proceeds. He is not required to plead legal theories at this early stage. See Alioto v.
Town of Lisbon, 651 F.3d 715, 721 (7th Cir. 2011); Hatmaker v. Mem’l Med. Ctr., 619 F.3d 741, 743 (7th
Cir. 2010); Aaron v. Mahl, 550 F.3d 659, 666 (7th Cir. 2008).

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[A] pretrial detainee is entitled to be free from conditions that amount to
“punishment,” Bell v. Wolfish, 441 U.S. 520, 535, 99 S. Ct. 1861, 60 L.Ed.2d 447
(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, 114 S. Ct. 1970, 128 L.Ed.2d 811 (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 traditionally applied the same standards to
Fourteenth Amendment claims brought by pretrial detainees and Eighth Amendment claims
brought by prisoners. See Smith, 803 F.3d at 309-10; Grieveson v. Anderson, 538 F.3d 763, 77172, 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”).

The Court has considered case law in both contexts when

analyzing Plaintiff’s claim.
Count 1
Sexual harassment that involves no physical touching may support a constitutional claim.
See, e.g., Beal v. Foster, 803 F.3d 356, 357 (7th Cir. 2015). In Beal, the Seventh Circuit held
that dismissal of an Eighth Amendment claim based on verbal harassment was premature. Id.
The plaintiff allegedly suffered psychological harm that necessitated mental health treatment,
after he was subjected to harassment that was sexual in nature, included physical conduct (but no
contact), and arguably placed him in greater danger of assault by other inmates. Id. The Court
recognized that purely verbal harassment can be just as cruel as physical harassment and added
that the alleged pain necessary to sustain a constitutional claim may be physical or
psychological. Id. at 357-58 (emphasis in original).
In this case, Plaintiff focuses on a single incident of purely verbal harassment by Officer
Zabor. (Doc. 1, p. 5). He describes no harm—physical or psychological—that resulted from the
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harassment. Id. The Court notes, however, that Plaintiff seeks damages to cover the cost of
therapy or counseling.

(Doc. 1, p. 6).

This request suggests that Plaintiff suffered from

psychological harm. Id.
Count 1 shall be dismissed without prejudice against Officer Zabor. However, the
dismissal shall be without prejudice, and Plaintiff will be granted leave to file an amended
complaint, in order to more fully develop the claim against Officer Zabor by describing the
harassment and the physical or psychological harm that resulted. Plaintiff is required to follow
the instructions and deadline for amending the complaint, as set forth in the below disposition.
Count 1 shall be dismissed against all other defendants as well. Plaintiff set forth no
allegations in his statement of claim against C/O Kelly, C/O Mason, and Sheriff Rohlfing. (Doc.
1, pp. 1, 5). Merely invoking the name of a potential defendant is not sufficient to state a claim
against that individual. See Collins v. Kibort, 143 F.3d 331, 334 (7th Cir. 1998). Section 1983
creates a cause of action based on personal liability and predicated upon fault; thus, “to be liable
under § 1983, an individual defendant must have caused or participated in a constitutional
deprivation.” Pepper v. Village of Oak Park, 430 F.3d 809, 810 (7th Cir. 2005) (citations
omitted). When a plaintiff omits a defendant from the statement of his claim, he fails to
demonstrate how that defendant was involved in a violation of his constitutional rights. Further,
the defendant cannot be said to be adequately put on notice of which claims in the complaint, if
any, are directed against him. Plaintiff’s omission of Defendants Kelly, Mason, and Rohlfing
from the statement of his claim is fatal to the constitutional claims against these defendants,2 and
they shall be dismissed without prejudice from this action.

2

The reference to C/O “Ben” and C/O Mason in the exhibit is insufficient to state a claim against these
defendants. (Doc. 1, p. 7). The Court cannot discern how either individual violated Plaintiff’s
constitutional rights, based on this passing reference to the defendants in an exhibit.

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Plaintiff also asserted a separate claim against State’s Attorney Hitzemann in the
Complaint. (Doc. 1, p. 8). This individual is not named as a defendant in the Complaint or listed
as a party to this action. (Doc. 1, pp. 1-2). When individuals are not identified as defendants in
the case caption or in the list of defendants, this Court will not treat them as defendants. See
FED. R. CIV. P. 10(a) (noting that the title of the complaint “must name all the parties”); Myles v.
United States, 416 F.3d 551, 551-52 (7th Cir. 2005) (holding that to be properly considered a
party, a defendant must be “specif[ied] in the caption”). Any claims against them should be
considered dismissed without prejudice. Id. Accordingly, all claims against State’s Attorney
Hitzemann are considered dismissed without prejudice from this action.3
Disposition
IT IS HEREBY ORDERED that Plaintiff’s Complaint (Doc. 1), including COUNT 1,
is DISMISSED without prejudice for failure to state a claim upon which relief may be granted.
IT IS FURTHER ORDERED that Defendants ERIC ZABOR, BEN KELLY, C/O
MASON, and NEAL ROHLFING are DISMISSED without prejudice because the Complaint
fails to state a claim for relief against these defendants.
Plaintiff is GRANTED leave to file a First Amended Complaint on or before August
30, 2018, if he wishes to pursue his claims in this action. Should Plaintiff fail to file an amended
complaint within the allotted time, dismissal of the action will become with prejudice. FED. R.
CIV. P. 41(b). See generally Ladien v. Astrachan, 128 F.3d 1051 (7th Cir. 1997); Johnson v.
Kamminga, 34 F.3d 466 (7th Cir. 1994). Further, a “strike” shall be assessed against Plaintiff.
See 28 U.S.C. § 1915(g).

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Further, it appears that this claim is unrelated to the sexual harassment claim against Officer Zabor. If
so, the two claims cannot proceed together in the same action. Plaintiff must pursue this claim, if at all, in
a separate case. See FED. R. CIV. P. 18, 20-21.

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Should Plaintiff decide to file an amended complaint, it is strongly recommended that he
use the forms designed for use in this District for such actions. He is encouraged to use this
Court’s standard civil rights complaint form. He must list this case number (No. 18-cv-01295JPG) on the first page of the form and label it “First Amended Complaint.” The amended
complaint shall present each claim in a separate count, and each count shall specify, by name,
each defendant alleged to be liable under the count, as well as the actions alleged to have been
taken by that Defendant. Plaintiff should attempt to include the facts of his case in chronological
order, inserting each defendant’s name where necessary to identify the actor. Plaintiff should
refrain from filing unnecessary exhibits. Plaintiff should include only related claims in his new
complaint. Claims found to be unrelated will be severed into new cases, new case numbers will
be assigned, and additional filing fees will be assessed. To enable Plaintiff to comply with this
order, the Clerk is DIRECTED to mail Plaintiff a blank civil rights complaint form.
Plaintiff is ADVISED that this dismissal shall not count as one of his allotted “strikes”
under the provisions of 28 U.S.C. § 1915(g).
Plaintiff is further ADVISED that his 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,
regardless of whether Plaintiff elects to file an amended complaint. See 28 U.S.C. § 1915(b)(1);
Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998).
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 will

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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: August 2, 2018
s/J. Phil Gilbert
District Judge
United States District Court

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