Lofquist v. Gimber et al

Filing 3

MEMORANDUM AND ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Signed by Judge Nancy J. Rosenstengel on 7/19/2018. (jaj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

NEIL J. LOFQUIST, #M04121,
Plaintiff,
vs.
CINDY GIMBER,
FRANK LAWRENCE,
LARISSA WANDRO,
ANN LAHR, and
SHERRY BENTON,
Defendants.

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Case No. 18 cv–1305 NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff Neil Lofquist, an inmate of the Illinois Department of Corrections currently
incarcerated in Menard Correctional Center (“Menard”), brings this action pursuant to 42 U.S.C.
§ 1983 for alleged deprivations of his constitutional rights. In his Complaint, Plaintiff claims the
defendants violated his First and Fourteenth Amendment rights by interfering with his mail.
(Doc. 1).
This case is now before the Court for a preliminary review of the Complaint pursuant to
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
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such relief.
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, 102627 (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).
Upon careful review of the Complaint and any supporting exhibits, the Court finds it
appropriate to allow this case to proceed past the threshold stage.
The Complaint
In his Complaint (Doc. 1), Plaintiff makes the following allegations: Plaintiff began
researching his family’s genealogy in 2014 with “few, if any, restrictions . . . imposed by the
Menard Correctional Center’s inmate mailroom.” (Doc. 1, p. 5). On July 17, 2017, Plaintiff
received a monetary settlement from Wexford Health Sources, Inc., allowing him to compensate
“archivists, volunteers, and librarians for providing century old census records, obituaries, and
unknown images of unknown relatives.” Id. On September 20, 2017, an archivist, David
D’Ondfrio of the United States Naval Academy, requested correspondence regarding Battleship
Captain E.A. Lofquist. Id. Plaintiff instead received a mail return slip from Menard’s mailroom
supervisor stating: “Per administrative decision - info on others not allowed.” Id. On October 20,
2017, Plaintiff received a mail return slip regarding correspondence from Uppsala Riksarkivet,

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another archivist, about certain relevant dates for “fourth, fifth, and sixth great grandparents in
Glottsta” for the same reason. (Doc. 1, p. 6). The same thing happened on October 30, 2017, with
correspondence from Heidi Butler, from Lansing Public Library, about Plaintiff’s mother,
grandmother, and a relative’s local obituary. Id.
On November 22, 2017, Plaintiff received another mail return slip for correspondence
from someone at Perry County Genealogical Society regarding Theodore Lofquist of the 36th
Aero Squadron. Id. The return slip indicates that maps were not permitted, and the items being
returned were forbidden by institutional regulations. Id. On December 4, 2017, Plaintiff received
correspondence from Adam J. Barrone of the Allen County Public Library Foundation notifying
Plaintiff that he mailed Plaintiff information about Plaintiff’s grandfather on November 2, but the
envelope was refused and returned marked “items not permitted.” Id. Plaintiff did not receive a
mail return slip or an explanation as to why the mail was not permitted. Id.
On January 17, 2018, correspondence regarding Plaintiff’s fourth great grandmother was
returned. (Doc. 1, p. 7). The slip noted: “Per administrative decision: records on other people not
allowed.” Id. That same day, correspondence regarding Plaintiff’s family history file from
someone at the Harrison County Genealogical society was returned. Id. The slip noted: “no road
maps” and “info on others not allowed per administrative decision.” Id. On February 9, 2018, the
same thing happened with correspondence from Stark County Library and St. Louis Public
Library regarding various deceased family members of Plaintiff. Id. On April 9, 2018, of the
three pages about Plaintiff’s fourth great grandmother sent to Plaintiff by his aunt, Cynthia
Cooper, only one page remained stapled to Cynthia’s letter. Id. Plaintiff received no notice from
the mailroom about the missing pages. Id.
“The rubber-stamping of intentional misconduct began against Plaintiff with

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Administrative Review Board Member Ann Lahr, expanding prohibitive measures to cover the
entire country of Sweden on Oct. 31, 2017.” (Doc. 1, p. 11). Benton denied Plaintiff’s grievance,
in which he questions why his mail was not permitted. Id. Though Plaintiff presented legal
arguments to Wandro and Benton in grievances, Wandro “found her nirvana by ignoring
Plaintiff’s authenticity, then fabricated policy even more irrational,” and Benton noted “duplicate
filings aren’t necessary.” Id. Plaintiff believes an inquiry into Mailroom Supervisor Gimber
would be appropriate given the correspondence that was “lost before falling under the auspices
of info-on-others” as “a convenient avoidance of paperwork,” among other things. (Doc. 1,
p. 12). Gimber “improvised” the “info-on-others” policy, and it was ratified by Assistant Warden
Frank Lawrence. Id. Gimber and Lawrence had “arbitrary interests in conjuring [the] info-onother policies” and “never cit[ed] actual security concerns for their illicit tactics. (Doc. 1, p. 13).
Wandro, a grievance officer, reviewed Plaintiff’s grievances regarding the return of his
mail and cited to departmental regulations and administrative decisions to deny the grievances.
(Doc. 1, p. 13); (Doc. 1-2, p. 5). Subsequently, Benton, of the Administrative Review Board,
determined that the mail issue was appropriately addressed by the administration at Menard after
reviewing Plaintiff’s grievances. (Doc. 1, p. 13).
Later, Plaintiff did not receive a mail return slip for a piece of mail that was returned.
(Doc. 1, p. 14). “One hundred one correspondence requests from Plaintiff since October first
have not been received from reputable organizations who have (mostly) corresponded with
Plaintiff previously.” (Doc. 1, p. 15). “Except for the seven mail return slips received by
Plaintiff, Gimber (under Lawrence’s supervision) withheld delivery of countless letters correctly
addressed to Plaintiff, disregarding minimal procedural safeguards, subjecting Plaintiff to
humiliatingly arbitrary administrative invasion, denying inmate and sender notification of the

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rejection, and depriving the constitutional rights of the author of said correspondence the
reasonable opportunity to protest blatantly illicit habits.” (Doc. 1, p. 16).
Citing to a decision made by Lawrence, Gimber designated the class of individuals
affected by the “info-on-others” policy to essentially include relatives of Plaintiff. (Doc. 1,
p. 17). The information on others policy “was created for [Plaintiff].” Id. Gimber has also
imposed “a blanket rejection of road maps to Plaintiff, versus the remaining population of
Menard.” (Doc. 1, p. 18). Plaintiff also notes that “it is common for inmates who have sizeable
balances to be the focus of envy by Menard staff.” (Doc. 1, p. 20). Plaintiff received a sizeable
amount of money in his trust fund account just before the information on others policy was
enforced against him. Id. Mailroom staff has access to inmate trust account balances. Id.
Plaintiff requests declaratory, monetary, and injunctive relief. (Doc. 1, pp. 20, 22-24).
Discussion
Based on the allegations of the Complaint and the claims specifically articulated by
Plaintiff, the Court finds it convenient to divide the pro se action into five counts. 1 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 regarding their merit.
Count 1 –

Menard’s policy prohibiting inmates from soliciting or possessing
information on others, which was ratified, perpetuated, and
expanded by Lawrence, Gimber, and Lahr is facially
unconstitutional under the First Amendment.

Count 2 –

Gimber, Lawrence, Wandro, Lahr, and Benton violated Plaintiff’s
First Amendment rights by censoring and interfering with
Plaintiff’s incoming correspondence from individuals and
organizations pursuant to Menard’s “information on others” policy.

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Several of Plaintiff’s “charges” were redundant, so the Court combined them where appropriate.

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Count 3 –

Gimber, Lawrence, and Wandro violated Plaintiff’s Fourteenth
Amendment rights by rejecting and/or confiscating records and
correspondence, sometimes without notice or an opportunity to be
heard, and denying Plaintiff’s grievances regarding the same.

Count 4 –

Benton, Lahr, Gimber, and Lawrence violated Plaintiff’s right to
equal protection under the Fourteenth Amendment by preventing
ancestry mail from Sweden, any ancestry mail related to relatives
of Plaintiff specifically, and correspondence with maps from being
delivered to Plaintiff.

Count 5 –

Gimber, Lawrence, and Wandro retaliated against Plaintiff for
receiving a sizeable award in his inmate trust account, in violation
of the First Amendment.

As discussed in more detail below, Counts 1 through 4 will be allowed to proceed. Any
other intended claim that has not been recognized by the Court is considered dismissed without
prejudice as inadequately pleaded under the Twombly pleading standard.
Counts 1 and 2 - First Amendment Mail Claims
Prisoners have protected First Amendment interests in both sending and receiving mail.
Procunier v. Martinez, 416 U.S. 396, 413-14 (1974). Nonetheless, prison administrators may
place restrictions on incoming and outgoing mail. Id. When the challenged regulation or practice
affects incoming mail, the standard set forth in Turner v. Safely, 482 U.S. 78 (1987)—that First
Amendment restrictions on prisoners must be “reasonably related to legitimate penological
interests”—is applied. Plaintiff claims that Menard’s policy of denying inmates mail that features
information on others is facially unconstitutional. At this early stage, the Court will not say that
Plaintiff cannot succeed in this claim, so Count 1 will proceed past threshold against Lawrence
and Gimber, the Menard officials that Plaintiff claims primarily created and perpetuated the
policy. Count 1 will also proceed against Lahr, as she allegedly expanded the “prohibitive
measures to cover the entire country of Sweden on Oct. 31, 2017.” (Doc. 1, p. 11).

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Plaintiff also claims that Gimber, Lawrence, Wandro, Lahr, and Benton are applying the
“information on others” policy to deprive him of correspondence and documents from various
individuals and entities he has enlisted to help him with researching his family history, in
violation of his First Amendment rights. At this early stage, Plaintiff has implicated Lawrence,
Gimber, and Lahr for this alleged deprivation, as Lawrence and Gimber allegedly created and
perpetuated the general “information on others” policy that negatively impacted his genealogy
research, and Lahr allegedly expanded it to include communication from Sweden, which
particularly affected Plaintiff given his Swedish heritage.
Plaintiff has failed to implicate Wandro and Benton, however. “Prison officials who
simply processed or reviewed inmate grievances lack personal involvement in the conduct
forming the basis of the grievance.” Owens v. Evans, 878 F.3d 559, 563 (7th Cir. 2017) (citing
Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001)). Plaintiff’s allegations do no more
than suggest Wandro and Benton reviewed Plaintiff’s grievances about the mailroom issue. Any
other claim he seeks to bring against them is unclear and therefore fails under the Twombly
pleading standard. Count 2 will proceed against Lawrence, Gimber, and Lahr and will be
dismissed without prejudice against Wandro and Benton.
Count 3 – Due Process
The Fourteenth Amendment provides that states shall not “deprive any person of life,
liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. Plaintiff has
invoked the guarantee of procedural due process in contending that the prison was required to
provide him with notice and an opportunity to be heard prior to rejecting or confiscating
correspondence addressed to him.
A court evaluating a due process claim must determine whether the plaintiff has been

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deprived of a constitutionally protected interest in life, liberty, or property. See Perez–Acevedo v.
Rivero–Cubano, 520 F.3d 26, 30 (1st Cir. 2008) (“The test for a procedural due process violation
requires the plaintiffs to show first, a deprivation of a protected ... interest, and second, a denial
of due process.”).
In Procunier v. Martinez, the Supreme Court held “[t]he interest of prisoners and
their correspondents in uncensored communication by letter, grounded as it is in
the First Amendment, is plainly a ‘liberty’ interest within the meaning of the
Fourteenth Amendment even though qualified of necessity by the circumstance of
imprisonment.”
Bonner v. Outlaw, 552 F.3d 673, 676 (8th Cir. 2009) (quoting Procunier v. Martinez, 416 U.S.
396, 418 (1974), overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401, 413-14
(1989)). The Eighth Circuit in Bonner concluded that the “case law is clear that an inmate has a
right to procedural due process-including notice-whenever any form of correspondence
addressed to that inmate is rejected.” Bonner, 552 F.3d at 678.
“[T]o determine whether a constitutional violation has occurred, it is necessary to ask
what process the State provided, and whether it was constitutionally adequate.” Zinermon v.
Burch, 494 U.S. 113, 126 (1990). Plaintiff and those with whom he was corresponding were
denied notice of the rejection of “countless letters correctly addressed to Plaintiff.” (Doc. 1,
p. 16). They were also not given a “reasonable opportunity to protest.” Id. Plaintiff, therefore,
has sufficiently alleged a denial of adequate notice and opportunity to appeal an adverse
determination, for the purposes of stating a viable due process claim. Accordingly, Count 3 will
proceed past threshold against Gimber and Lawrence who allegedly withheld delivery or
otherwise sanctioned the withholding.
To the extent Plaintiff seeks to bring a claim based on the denial of grievances on this
issue, the Seventh Circuit has “specifically denounc[ed] a Fourteenth Amendment substantive

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due process right to an inmate grievance procedure.” Grieveson v. Anderson, 538 F.3d 763, 772
(7th Cir. 2008). As explained in Antonelli v. Sheahan, 81 F.3d 1422, 1430-31 (7th Cir. 1996),
“any right to a grievance procedure is a procedural right, not a substantive one. Accordingly, a
state’s inmate grievance procedures do not give rise to a liberty interest protected by the Due
Process Clause.” Id. at 1430-31 (internal citations omitted). Because Plaintiff had no expectation
of a particular outcome of his grievances or complaints, there is no viable claim which can be
vindicated through 42 U.S.C. § 1983. Given the allegations, Wandro’s involvement in the denial
of Plaintiff’s mail appears to be limited to the denial of grievances on the issue. Accordingly,
Count 3 shall be dismissed against Wandro.
Count 4 – Equal Protection
The Equal Protection Clause of the Fourteenth Amendment protects individuals from
governmental discrimination, typically on account of race, national origin, or sex. Swanson v.
City of Chetek, 719 F.3d 780, 783 (7th Cir. 2013). The Equal Protection Clause may be invoked
where similarly situated individuals are being intentionally treated differently without a rational
relationship to a legitimate state purpose. Engquist v. Oregon Department of Agriculture,
553 U.S. 591, 601-02 (2008). An equal protection violation may also arise on a “class of one”
theory, where an individual is singled out for different treatment for no rational reason. “The
classic class-of-one claim is illustrated when a public official, ‘with no conceivable basis for his
action other than spite or some other improper motive . . . comes down hard on a hapless private
citizen.’” Swanson v. City of Chetek, 719 F.3d 780, 783-84 (7th Cir. 2013) (citing Lauth v.
McCollum, 424 F.3d 631, 633 (7th Cir. 2005)). “A class-of-one plaintiff must plead and prove

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that he was ‘intentionally treated differently from others similarly situated 2 and that there is no
rational basis for the difference in treatment.’” Glover v. Dickey, 668 F. App’x 158, 160 (7th Cir.
2016) (citing D.B. ex rel. Kurtis B. v. Kopp, 725 F.3d 681, 685-86 (7th Cir. 2013) (quoting
Engquist v. Or. Dep't of Agric., 553 U.S. 591, 601 (2008)).
Plaintiff claims that his equal protection rights were violated because he was singled out
by Lawrence and Gimber with a rule prohibiting him from receiving maps and information on
others, which has prevented him from effectively conducting research on his family history. He
also claims that Lahr allegedly expanded this rule to prohibit any information from the state
archives of Sweden. His claim therefore appears to ride the line between a class of one claim,
with respect to Lawrence and Gimber, and an equal protection claim for discrimination based on
national origin with respect to Lahr.
Taking Plaintiff’s allegations as true and considering the low pleading standard, the Court
finds that he has stated an equal protection claim upon which relief may be granted against
Gimber, Lawrence, and Lahr for imposing certain restrictions on only his incoming mail, and on
incoming mail from Sweden specifically. Count 4 will therefore proceed against these
defendants.
Count 5 – Retaliation
To prevail on a § 1983 claim of First Amendment retaliation, Plaintiff must show that
“(1) he engaged in activity protected by the First Amendment; (2) he suffered a deprivation that
would likely deter First Amendment activity in the future”; and (3) a causal connection between
the two. Watkins v. Kasper, 599 F.3d 791, 794 (7th Cir. 2010) (citing Bridges v. Gilbert, 557

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While most circuits require highly specific allegations regarding the “similarly situated” element of an
equal protection claim to validly state such a claim, the Seventh Circuit has set an extremely low pleading standard.
Geinosky v. City of Chicago, 675 F.3d 743, 747–48 (7th Cir. 2012).

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F.3d 541, 546 (7th Cir. 2009) (citation omitted)).
Plaintiff claims that “it is common for inmates who have sizeable balances to be the focus
of envy by Menard staff.” (Doc. 1, p. 20). He further suggests that the information on others
policy’s implementation shortly after he received a large deposit in his trust account shows that
his having a large balance was the catalyst for the policy. That being said, Plaintiff’s Complaint
is devoid of allegations that suggest conduct protected by the First Amendment, such as filing
grievances or complaining about his conditions of confinement, inspired the policy. See, e.g.,
Gomez v. Randle, 680 F.3d 859, 866 (7th Cir. 2012); Walker v. Thompson, 288 F.3d 1005 (7th
Cir. 2002). Accordingly, Count 5 will be dismissed without prejudice.
Injunctive Relief
In the Complaint, Plaintiff has a section titled “Preliminary Injunction,” indicating his
desire for preliminary injunctive relief. (Doc. 1, p. 20). In order to obtain a preliminary
injunction, Plaintiff must demonstrate that: (1) his underlying case has some likelihood of
success on the merits; (2) no adequate remedy at law exists, and; (3) Plaintiff will suffer
irreparable harm without the injunction. Woods v. Buss, 496 F.3d 620, 622 (7th Cir. 2007). If
those three factors are shown, the district court must then balance the harm to each party and to
the public interest from granting or denying the injunction. Id.
Plaintiff has not explained how he is at risk of suffering irreparable harm without
preliminary relief. He has apparently been subjected to the information on others policy for
almost a year, and there is no indication that any further use of the policy on him will inflict
irreparable harm. Given this lack of urgency, and the fact that Plaintiff failed to file a separate
motion pursuant to Federal Rule of Civil Procedure 65 seeking interim relief, Plaintiff’s request
for a preliminary injunction is DENIED without prejudice. Plaintiff may still request a

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preliminary injunction by filing a separate motion pursuant to Rule 65, should he so choose.
Disposition
IT IS HEREBY ORDERED that COUNTS 1 and 2 will PROCEED against
GIMBER, LAWRENCE, and LAHR and are DISMISSED without prejudice against all other
defendants.
IT IS FURTHER ORDERED that COUNT 3 will PROCEED against GIMBER and
LAWRENCE and is DISMISSED without prejudice against all other defendants.
IT IS FURTHER ORDERED that COUNT 4 will PROCEED against GIMBER,
LAWRENCE, and LAHR and is DISMISSED without prejudice against all other defendants.
IT IS FURTHER ORDERED that COUNT 5 is DISMISSED without prejudice for
failure to state a claim upon which relief may be granted.
IT IS FURTHER ORDERED that BENTON and WANDRO are DISMISSED from
this action without prejudice for failure to state a claim upon which relief may be granted.
IT IS FURTHER ORDERED that as to COUNTS 1, 2, 3, and 4, the Clerk of Court
shall prepare for GIMBER, LAWRENCE, and LAHR: (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 each Defendant’s place of employment as 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

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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 United States Magistrate
Judge Donald G. Wilkerson for further pre-trial proceedings. Further, this entire matter shall be
REFERRED to United States Magistrate Judge Wilkerson for disposition, pursuant to Local
Rule 72.2(b)(3) 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.
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
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: July 19, 2018

___________________________
NANCY J. ROSENSTENGEL
United States District Judge
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