Decker v. Zabor et al

Filing 9

ORDER REFERRING CASE to Magistrate Judge Reona J. Daly. Signed by Judge J. Phil Gilbert on 10/19/2018. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOSEPH DECKER,
Plaintiff,
vs.
ERIC ZABOR,
NEAL ROHLFING,
MONROE COUNTY, ILLINOIS,
and WATERLOO POLICE DEPT.,
Defendants.

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Case No. 18-cv-01295-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
This matter is now before the Court for consideration of the Amended Complaint filed by
Plaintiff Joseph Decker. (Doc. 8). Plaintiff brings this action pursuant to 28 U.S.C. § 1331 and
Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), based on violations of his
constitutional rights at Monroe County Jail (“Jail”). (Doc. 8, p. 6). Plaintiff claims that he was
sexually harassed by a Waterloo officer at the Jail. He seeks money damages from the officer,
Waterloo Police Department, Monroe County Sheriff, and Monroe County. (Doc. 8, pp. 1, 7).
This case is now before the Court for preliminary review of the Amended Complaint.
The Court is required to screen prisoner complaints to filter out non-meritorious claims. See
28 U.S.C. § 1915A(a). Any portion of a 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 must be dismissed. 28 U.S.C. § 1915A(b). At this
juncture, the factual allegations of the pro se complaint are to be liberally construed. Rodriguez
v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).

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Amended Complaint
Plaintiff alleges that he was harassed while being served with a federal indictment by
Waterloo Police Officer Eric Zabor at Monroe County Jail on March 21, 2018. (Doc. 1, p. 6).
After completing service of the indictment on Plaintiff, Officer Zabor grabbed his own “private
area in a sexual way” and told Plaintiff that he “would be fucking [him] real soon.” Id. This
caused Plaintiff to fear for his safety and his family’s safety. Id. He suffered from nightmares,
anxiety, insomnia, and panic attacks and sought treatment with a doctor and therapist. Id. He
now brings a claim against Officer Zabor for harassment. Id. In addition, he names the Monroe
County Sheriff, Monroe County, and Waterloo Police Department as “responsible” parties. Id.
Discussion
In accordance with the objectives of Federal Rules of Civil Procedure 8(e) and 10(b), the
Court deems it appropriate to organize the pro se Amended Complaint into the following count:
Count 1 -

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 designation of this count does not constitute an opinion regarding its merits. Any other
claims encompassed by the allegations but not identified above are considered dismissed
without prejudice from this action for failure to meet the Twombly pleading standards.
The applicable standard for this claim depends on Plaintiff’s legal status on the date he
was harassed.

Different legal standards apply to claims brought by prisoners (Eighth

Amendment) and pretrial detainees (Fourteenth Amendment). See Currie v. Chhabra, 728 F.3d
626 (7th Cir. 2013). The Eighth Amendment prohibits the cruel and unusual punishment of
prisoners, and this includes the “unnecessary and wanton infliction of pain.” Outlaw v. Newkirk,

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259 F.3d 833, 837 (7th Cir. 2001). The Fourteenth Amendment prohibits all punishment of
persons who have not been convicted. Lewis v. Downey, 581 F.3d 467, 473 (7th Cir. 2009).
The allegations support a claim against the officer. Generally, “simple verbal harassment
does not constitute cruel and unusual punishment, deprive a prisoner of a protected liberty
interest or deny a prisoner equal protection of the law.” DeWalt v. Carter, 224 F.3d 607, 612
(7th Cir. 2000). But verbal harassment can result in psychological pain that amounts to cruel and
unusual punishment. See, e.g., Beal v. Foster, 803 F.3d 356, 357 (7th Cir. 2015). In Beal, the
Seventh Circuit recognized that purely verbal harassment can be just as cruel as physical
harassment where it results in psychological pain. Id. at 357-58 (“[P]hysical injury need not
result for the punishment to state a cause of action, for the wanton infliction of psychological
pain is also prohibited.”). Plaintiff describes significant psychological pain that resulted from a
single incident of harassment by Officer Zabor. (Doc. 8, p. 6). The officer’s comment, made
while serving Plaintiff with a federal indictment, caused Plaintiff to experience fear-induced
nightmares, anxiety, and panic attacks that necessitated treatment. Id. These allegations satisfy
the Eighth Amendment standard and would also clear the less stringent Fourteenth Amendment
bar. Accordingly, Count 1 survives preliminary review against Officer Zabor.
Plaintiff also names the Monroe County, Monroe County Sheriff, and Waterloo Police
Department as “responsible” defendants, but he develops no claim against them under § 1983.
(Doc. 8, p. 6). Section 1983 creates a cause of action based on personal liability and predicated
upon fault. Therefore, “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). The Supreme Court has interpreted § 1983 as barring
respondeat superior liability. Daniel v. Cook County, 833 F.3d 728, 733-34 (7th Cir. 2016)

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(citing Monell v. Dep’t of Social Servs., 436 U.S. 658, 694-95 (1978)). In other words, these
defendants are not “responsible” for the deprivation of Plaintiff’s constitutional rights, simply
because they employ or supervise Officer Zabor. Local governing bodies may be liable for
monetary damages under § 1983, however, if the unconstitutional act was caused by an official
policy, custom, or widespread practice. Monell, 436 U.S. at 690. In the Amended Complaint,
Plaintiff points to no policy, custom, or practice attributable to one of these defendants, let alone
one that the caused violation of his constitutional rights. Id. By all indications, the only factor at
play was the individual officer’s alleged malfeasance. Accordingly, Count 1 shall proceed
against Officer Zabor and shall be dismissed with prejudice against all other defendants.
Disposition
IT IS HEREBY ORDERED that COUNT 1 survives screening and shall receive further
review against Defendant ERIC ZABOR. However, this claim is DISMISSED with prejudice
against Defendants NEAL ROHLFING, WATERLOO POLICE DEPARTMENT, and
MONROE COUNTY, ILLINOIS for failure to state a claim upon which relief may be granted.
The Clerk of Court shall prepare for Defendant ERIC ZABOR: (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 Amended Complaint,
and this Memorandum and Order to Defendant’s place of employment as identified by Plaintiff.
If 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 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

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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
Amended 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 is hereby

REFERRED to a United States Magistrate Judge for disposition, as contemplated by Local
Rule 72.2(b)(3) and 28 U.S.C. § 636(c), should all the 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, regardless of whether
his application to proceed in forma pauperis is granted. See 28 U.S.C. § 1915(f)(2)(A).
Plaintiff is ADVISED that at the time application was made under 28 U.S.C. § 1915 for
leave to commence this civil action without being required to prepay fees and costs or give
security for the same, the applicant and his or her attorney were deemed to have entered into a
stipulation that the recovery, if any, secured in the action shall be paid to the Clerk of the Court,
who shall pay therefrom all unpaid costs taxed against Plaintiff and remit the balance to Plaintiff.
Local Rule 3.1(c)(1).
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 cause a delay

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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: October 19, 2018
s/J. Phil Gilbert
J. PHIL GILBERT

United States District Judge

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