Austin v. Forbes et al

Filing 1

MEMORANDUM AND ORDER severing case number 18-1152-DRH. Signed by Judge David R. Herndon on 6/19/2018. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
LAZEREK AUSTIN,
Plaintiff,
vs.

Case No. 18−cv–1152−DRH

WILLIAM SPILLER,
S. GEE,
JOHN DOE #1,
JOHN DOE #2,
JOHN DOE #3,
JOHN DOE #4,
CONFIDENTIAL SOURCE #1,
CONFIDENTIAL SOURCE #2,
CONFIDENTIAL SOURCE #3,
CONFIDENTIAL SOURCE #4,
CONFIDENTIAL SOURCE #5,
KENT BROOKMAN,
JASON HART,
HILL,
KELLY PIERCE,
LORI OAKLEY,
JACQUELINE LASHBROOK,
FORBES,
COX,
FRENCH,
TERI KENNEDY, and
JOHN BALDWIN
Defendants.
MEMORANDUM AND ORDER
HERNDON, District Judge:
Plaintiff Lazerek Austin, an inmate in Pontiac Correctional Center, brings
this action for deprivations of his constitutional rights pursuant to 42 U.S.C.
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§ 1983 for events that occurred at Menard and Pontiac Correctional Centers.
Plaintiff seeks damages, declarative relief, and injunctive relief. This case is now
before the Court for a preliminary review of the Complaint pursuant to 28 U.S.C.
§ 1915A.
However, review of Plaintiff’s Complaint reveals that he has attempted to
improperly join certain claims. Thus, prior to proceeding with review of this case
pursuant to § 1915A, the Court will sever certain claims into a separate case
pursuant to Fed. R. Civ. P. 21 and George v. Smith, 507 F.3d 605 (7th Cir.
2007).
The Complaint
Plaintiff was an inmate at Menard in the spring of 2017. (Doc. 1, p. 4). In
April 2017, inmates Henderson, Smith, and Davis attacked several guards,
allegedly because the sergeant was frequently drunk and excessively punitive. Id.
Plaintiff alleges that prior to January 2018, he had never spoken to Henderson or
Smith in his life. (Doc. 1, p. 5).
In the subsequent investigation, Plaintiff was interviewed by Does # 1 and
2. (Doc. 1, p. 5). Does #1 and 2 asked Plaintiff what gang he was in, and when
Plaintiff denied being in a gang, told Plaintiff that other inmates had reported that
Plaintiff had approved the assault prior to its occurrence.

(Doc. 1, pp. 5-6).

Plaintiff stated that he had no information about the incident, he did not know the
inmates involved, and that it seemed to him that the incident was not gangrelated. (Doc. 1, p. 6). Plaintiff repeatedly asked to end the interview because he

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had no information, but he was repeatedly pressured into making false
statements. Id.
The next day on April 26, 2017, Spiller, Doe #3, and Doe #4 interviewed
Plaintiff. (Doc. 1, p. 7). The investigators repeatedly asserted that Plaintiff had
something to do with the assault, and Plaintiff repeatedly denied knowing
anything about it.

(Doc. 1, pp. 7-9).

The investigators ultimately threatened

Plaintiff, telling him that they could do whatever they wanted to a person in
custody, that his grievances would be denied, and that Plaintiff would regret not
cooperating. (Doc. 1, p. 9). Spiller told Plaintiff he would be getting a new cell.
Id. Gee signed the paperwork placing Plaintiff on investigative status. (Doc. 1-1,
p. 5).
Plaintiff was transferred to the North 2 segregation unit.

Id.

Plaintiff

alleges the conditions in that cell were unconstitutional and that he was deprived
of his property. (Doc. 1, p. 10). Plaintiff received an investigative report, but
alleges that the report was insufficient to put him on notice of the reason for the
investigation. (Doc. 1, pp. 11-12). Plaintiff also alleges that he did not receive an
interview in order to respond to the investigative report, as required by Illinois
Administrative Code 504.50(c). (Doc. 1, p. 12).
Plaintiff received an allegedly bogus disciplinary report on May 9, 2017
signed by Spiller alleging that he participated in a security threat group and/or
unauthorized leadership activity.

Id.

Plaintiff alleges that the report failed to

detail any prohibited conduct, as required by Illinois Administrative Code

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504.30(c)(2)(4)(5). (Doc. 1, pp. 12-13). Plaintiff alleges that Spiller conspired
with the 5 confidential sources to write the disciplinary report out of retaliation
because Plaintiff refused to cooperate with his investigation. (Doc. 1, p. 13).
Plaintiff was placed in administrative detention on May 10, 2017, prior to
the disciplinary hearing.

(Doc. 1, p. 24).

When he complained about it to

Lashbrook, she told him to file a grievance. (Doc. 1, pp. 24-25). Plaintiff alleges
that he was placed in administrative segregation in violation of the Illinois
Administrative Code. (Doc. 1, p. 25). Plaintiff alleges that he was improperly
placed in administrative segregation when he was on segregation status, and that
Hill and Oakley refused to address his grievances regarding his placement. (Doc.
1, pp. 25-26). He further alleges that he was never given a hearing regarding his
administrative segregation placement. (Doc. 1, p. 26).
On May 16, 2017, Plaintiff went before the adjustment committee, chaired
by Lt. Brookman. (Doc. 1, p. 15). Brookman told Plaintiff he had to find him
guilty because it involved a staff assault and the other officers would be “down his
back” if he did not. Id. But Brookman said he would only give Plaintiff 6 months
of discipline.

(Doc. 1, p. 16).

Plaintiff alleges that the adjustment committee

quoted Spiller’s report verbatim and did not independently determine the
reliability of the confidential sources. Id.
After the hearing, Plaintiff did not get his adjustment committee summary
for a couple of weeks. Id. When he asked Spiller why, Spiller told him it was
because he was going to receive more than 6 months.

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(Doc. 1, pp. 16-17).

Plaintiff received the summary on June 7, 2017, but in it was not signed by the
committee members or the warden in violation of the Illinois administrative code.
(Doc. 1, p. 17). As Spiller promised, Plaintiff received 1 year across the board in
sanctions. Id. Plaintiff sent his counselor a grievance about the summary; it was
denied on June 26, 2017.

(Doc. 1, pp. 17-18).

Plaintiff alleges that Spiller

implied that the grievance was denied because “officers were assaulted.” (Doc. 1,
p. 18). Lashbrook concurred in the denial. Id. Plaintiff filed another grievance to
Hill on June 12, 2017, contesting the increased sanction from 6 months to 1 year.
Id.

Plaintiff alleges that the second disciplinary report that Hill gave him in

response to his complaints was fraudulent; he filed a grievance regarding that
report on June 15, 2017. (Doc. 1, p. 19). The June 12 and June 15 grievances
were denied as duplicates. Id. Plaintiff also filed a grievance on June 13, 2017
regarding the investigative tactics, which he alleges was improperly returned to
him for failing to attempt to resolve the issue with his counselor. (Doc. 1, p. 20).
Plaintiff also filed a grievance alleging the newly-enacted regulation that he was
punished for violating was unconstitutionally vague.

(Doc. 1, p. 21).

That

grievance was also rejected. Id. Plaintiff alleges that all of his grievances were
rejected out of retaliation for the staff assault. Id. He further allege that Lori
Oakley could not have “thoroughly reviewed” the grievances because she did not
respond to all of his issues. (Doc. 1, pp. 21-22). Lashbrook also declined to
address the issues. (Doc. 1, pp. 22-23).

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Plaintiff was transferred to Pontiac Correctional Center on November 5,
2017. (Doc. 1, p. 27). When he arrived at Pontiac, he was told that he was on
administrative segregation and assigned to the administrative detention cell
house.

Id.

Even though Plaintiff alleges that he was originally placed on

administrative segregation at Menard, he did not receive an official notice that he
was in administrative detention until April 10, 2018. Id. The notice alleged that
he was the highest ranking Vice Lord leader in the east cell house at Menard, and
had prior knowledge of a major staff assault. Id. Plaintiff had a hearing before
French, Horton, Pierce, Forbes, Cox and Jane Doe1 on April 19, 2018. (Doc. 1 p.
28). Plaintiff reiterated that he was not involved in a security threat group or the
relevant incident, but he was not released from administrative segregation. (Doc.
1, pp. 28-30).
Discussion
Based on the allegations of the Complaint, the Court finds it convenient to
divide the pro se action into 17 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.
Count 1 – Spiller, Gee, and Does #1-4, conspired to retaliate against
Plaintiff by placing him in administrative segregation for refusing to
implicate other prisoners in violation of the First Amendment;

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Horton, Pierce, and Jane Doe were not included in this case caption or in Plaintiff’s list of
Defendants. The Court has therefore assumed that Plaintiff did not intend to state claims against
these individuals. Fed. R. Civ. P. 10; see also Myles v. United States, 416 F.3d 551, 551–52 (7th
Cir. 2005) (to be properly considered a party a defendant must be “specif[ied] in the caption”).

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Count 2 – Confidential Sources #1-5 conspired with Spiller, Gee,
and Does # 1-4 by knowingly providing false information in order to
issue Plaintiff a bogus disciplinary report and justify his placement in
segregation in order to deprive him of his Fourteenth Amendment
due process rights and in violation of the First Amendment;
Count 3 – Brookman, Hart, and Lashbrook, in conspiracy with
others, knew the disciplinary report issued to Plaintiff was false and
written in retaliation in violation of the First Amendment, but found
Plaintiff guilty regardless, denying him of his due process rights
under the Fourteenth Amendment;
Count 4 – Pierce, Oakley, and Lashbrook failed to adequately
investigate Plaintiff’s grievances regarding the investigation and
discipline in conspiracy with others in order to deprive Plaintiff of his
Fourteenth Amendment due process rights and his First Amendment
right to be free of retaliation;
Count 5 – Hill forged or arranged to be forged the adjustment
committee report to cover up the lack of signatures on the original
report in furtherance of the conspiracy to retaliate against Plaintiff in
violation of his First Amendment rights and to deprive him of his
Fourteenth Amendment right to due process;
Count 6 – Hill participated in the conspiracy by depriving Plaintiff
the opportunity to file grievances regarding Spiller in retaliation in
violation of the First Amendment and to deprive Plaintiff of his
Fourteenth Amendment due process rights;
Count 7 – Lashbrook placed Plaintiff in administrative detention
without the approval of the Director in violation of Plaintiff’s due
process rights;
Count 8 – Spiller, Gee, Does #1-4, Confidential Sources #1-5,
denied Plaintiff his due process rights, individually and in conspiracy
when they acted to issue Plaintiff a false disciplinary report, which
lacked proper notice;
Count 9 – Baldwin denied Plaintiff his due process rights when he
approved Plaintiff’s assignment to administrative detention at
Menard;
Count 10 – Baldwin, Lashbrook, Spiller, Brookman, and Hart
denied Plaintiff procedural due process in violation of the Fourteenth
Amendment when they punished him pursuant to IDOC’s 111 Rule,
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which is unconstitutionally vague because it does not provide
prisoners notice of what is prohibited conduct;
Count 11 – Spiller subjected Plaintiff to unconstitutional conditions
of confinement in violation of the Eighth Amendment and retaliated
against Plaintiff in violation of the First Amendment when he placed
Plaintiff in a dirty cell without blankets, sheets, cleaning supplies,
hygiene products, a usable mattress, toilet paper, his blood pressure
medication, or a change of clothes on April 26, 2017;
Count 12 – Spiller, Gee, Does #1-4, Confidential Sources #1-5,
Brookman, Hart, Pierce, Oakley, Hill, Lashbrook, and Baldwin
conspired to place Plaintiff in segregation or sustained his placement
in segregation without legitimate justification and under extreme
conditions in violation of the Eighth Amendment;
Count 13 – Baldwin and Lashbrook, subjected Plaintiff to
unconstitutional strip searches when they enforced a policy of strip
searching all segregation inmates at Menard in violation of the Fourth
and Eighth Amendments;
Count 14 – Spiller, Gee, Does #1-4, Confidential Sources #1-5,
Kent, Brookman, Hart, Lashbrook, Oakley, Pierce, and Hill violated
Plaintiff’s Fourteenth Amendment rights to equal protection under
the laws when they intentionally treated him differently than other
prisoners in the Menard east cell house by targeting him for
discipline;
Count 15 – Pontiac administrative detention committee members,
French, Forbes, Cox, Kennedy, and Baldwin conducted a sham
hearing on Plaintiff’s administrative detention at Pontiac in
conspiracy with other intel investigators to retaliate against Plaintiff
in violation of his First Amendment rights for refusing to cooperate
with Menard intel officials and in order to deprive Plaintiff of his due
process rights under the Fourteenth Amendment;
Count 16 – French, Kennedy, Forbes, Cox, and Baldwin violated
Plaintiff’s Eighth Amendment rights when they placed him in
administrative segregation at Pontiac because the conditions at
Pontiac are unconstitutional;
Count 17 – Kennedy and Baldwin had an unconstitutional strip
search policy at Pontiac regarding administrative segregation inmates
which was intended to harass and not for any valid penological

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purpose in violation of the Eighth Amendment and Fourth
Amendment.
Counts 1-14 arise out of Plaintiff’s time at Menard Correctional Center,
whereas Counts 15-17 arise out of Plaintiff’s time at Pontiac, where he is presently
incarcerated. In George v. Smith, the Seventh Circuit emphasized that unrelated
claims against different defendants belong in separate lawsuits, “not only to
prevent the sort of morass” produced by multi-claim, multi-defendant suits, “but
also to ensure that prisoners pay the required filing fees” under the Prison
Litigation Reform Act. 507 F.3d 605, 607 (7th Cir. 2007) (citing 28 U.S.C. §
1915(b)(g)); Wheeler v. Talbot, 695 F. App’x 151, 152 (7th Cir. 2017) (failing to
sever mis-joined claims prejudices the United States Treasury); Owens v.
Godinez, 860 F.3d 434, 436 (7th Cir. 2017). A prisoner who files a “buckshot
complaint” that includes multiple unrelated claims against different individuals
should not be allowed to avoid “risking multiple strikes for what should have
been several different lawsuits.” Turley v. Gaetz, 625 F.3d 1005, 1011 (7th Cir.
2010). The Court has broad discretion as to whether to sever claims pursuant to
Federal Rule of Civil Procedure 21 or to dismiss improperly joined Defendants.
See Owens v. Hinsley, 635 F.3d 950, 952 (7th Cir. 2011); Rice v. Sunrise
Express, Inc., 209 F.3d 1008, 1016 (7th Cir. 2000).
Federal Rule of Civil Procedure 20 permits joinder of all claims that “aris[e]
out of the same transaction, occurrence, or series of transactions or occurrences;
[when] any question of law of fact common to all defendants will arise in the
action.” That means that a plaintiff cannot join separate claims against different
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defendants or sets of defendants in the same lawsuit, unless the plaintiff asserts a
claim for relief against each defendant that arises out of the same transaction or
occurrence or series thereof, and presents common questions of law or fact.
Owens, 860 F.3d at 436; George, 507 F.3d at 607.
Unrelated claims may be joined pursuant to Federal Rule of Civil Procedure
18 where Rule 20 has already been satisfied. Intercon Research Associates, Ltd.
v. Dresser Ind., Inc., 696 F.2d 53, 57 (7th Cir. 1982). Therefore, the analysis the
Court must perform in determining whether claims are properly joined is twofold:
(1) first, a court must determine whether defendants are properly joined pursuant
to Rule 20, (2) second, a court may then consider any unrelated claims against
one or more of the group of defendants properly joined in the first step.
After applying the Federal Rules of Civil Procedure, it is clear that Plaintiff’s
claims regarding Menard and Pontiac belong in separate lawsuits. Plaintiff raises
claims that arise out of his time at two different prisons.

There are different

defendants involved in each placement and policy decision that Plaintiff complains
about. Plaintiff attempts to get around this conclusion by alleging that all of the
events that occurred were part of a single conspiracy.

Many of Plaintiff’s

conspiracy allegations are conclusory, but even if they were not, the Seventh
Circuit has still said that the districts should sever claims that occurred at
different prisons, even where the plaintiff has alleged a conspiracy. See Owens v.
Evans, 878 F.3d 559, 561 (7th Cir. 2017) (noting district court should have
severed case involving claims against 44 defendants, alone and in conspiracy,

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across 4 prisons). Moreover, it is not clear that venue is proper as to the claims
arising out of Pontiac because none of the events at issue occurred in this district,
nor can the defendants be found here, although the Court leaves full discussion of
that issue for another day.
Rule 20 specifies that the Court must divide the Complaint into two actions.
Next, the Court must consider whether Rule 18 permits joinder of any claims
against common parties. Rule 20 may permit Plaintiff to join his claims against
Baldwin for approving various official actions in a single lawsuit. However, given
that the other Pontiac claims will proceed in a separate lawsuit regardless, and
that there are common facts between the other Pontiac claims and Plaintiff’s
Pontiac claims against Baldwin, the Court will exercise its discretion under Fed.
R. Civ. P. 21 and sever Plaintiff’s claim against Baldwin based on the Pontiac
incidents into the Pontiac action. See Chavez v. Ill. State Police, 251 F.3d 612,
632 (7th Cir. 2001). This severance will promote judicial economy because the
Pontiac claims have common issues of fact.
Counts 1-14 shall remain in this action. A separate order will be issued in
this case to review the merits of those claims. Plaintiff shall be provided with a
copy of the merits review order as soon as it is entered.

No service shall be

ordered on any defendant at this time, pending the § 1915A review. Plaintiff has
also requested a preliminary injunction, although he has not filed a separate
motion at this time.

As the request is against Defendants Baldwin, Kennedy,

French, Forbes, and Cox and relates to Plaintiff’s current request for

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administrative detention, the Clerk of Court is directed to docket a preliminary
injunction in the severed case.
Disposition
IT IS HEREBY ORDERED that Counts 15-17, which are unrelated to
Counts 1-14, are severed into a separate case. Counts 1-14 against Spiller, Gee,
John Does #1-4, Confidential Sources #1-5, Brookman, Hart, Hill, Pierce,
Oakley, Lashbrook, and Baldwin shall stay in this case. The severed case shall
contain Count 15-17 against Forbes, Cox, French, Kennedy, and Baldwin. The
Clerk of Court is directed to terminate Forbes, Cox, French, and Kennedy from
this action.
The claims in the severed cases shall be subject to merits review pursuant
to 28 U.S.C. §1915A after a new case number and judge assignment is made. In
the new case in this Court, the Clerk is DIRECTED to file the following
documents:
1) This Memorandum and Order;
2) The Complaint (Doc. 1);
The Clerk is further DIRECTED to docket a preliminary injunction in the new
case. Plaintiff will be responsible for an additional $400.00 filing fee in the
newly severed case. No service shall be ordered on the defendants in the severed
case until the § 1915A review is completed.

Judge Herndon
2018.06.19 07:10:26
-05'00'

IT IS SO ORDERED.

United States District Judge

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