McRae v. Myers et al

Filing 26

ORDER: Plaintiff's Amended Complaint (Doc. 15 ) is DISMISSED without prejudice for failure to state a claim. Counts 1-4 are DISMISSED with prejudice. Should Plaintiff wish to proceed with his case, he shall file a Second Amended Complaint on or before July 9, 2021. In order to assist Plaintiff in preparing his amended complaint, the Clerk is DIRECTED to mail Plaintiff a blank civil rights complaint form. Signed by Judge David W. Dugan on 6/7/21. (bps)

THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CHARLES A. MCRAE,
Plaintiff,
vs.
SHANNON N. MYERS,
DEBBIE KNAUER,
SARAH BROWN-FOILES,
SARAH JOHNSON,
LESLIE MCCARTY,
ROB JEFFREYS, and
J. DOE #1-12,
Defendants.

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Cause No. 3:20-cv-00410-DWD

MEMORANDUM & ORDER
DUGAN, District Judge:
Plaintiff Charles A. McRae is a prisoner currently incarcerated at the Joliet
Treatment Center (“JTC”) in the Illinois Department of Corrections (“IDOC”). He filed
this civil rights lawsuit pursuant to 42 U.S.C. § 1983 for alleged deprivations of his
constitutional rights while he was confined at Big Muddy River Correctional Center
(“BMRCC”). (Doc. 15). His claims include violation of the Prison Rape Elimination Act
(“PREA”), retaliation, and cruel and unusual punishment. He seeks monetary damages
and injunctive relief.
This case is now before the Court for a preliminary merits review of the Amended
Complaint (Doc. 15) under 28 U.S.C. § 1915A, which requires the Court to screen prisoner
Complaints to filter out non-meritorious claims. See 28 U.S.C. § 1915A(a). Any portion
of the Amended Complaint that is legally frivolous, malicious, fails to state a claim for

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relief, or requests money damages from an immune defendant must be dismissed. See
28 U.S.C. § 1915A(b). At this juncture, the factual allegations of the pro se Amended
Complaint are to be liberally construed. See Rodriguez v. Plymouth Ambulance Serv., 577
F.3d 816, 821 (7th Cir. 2009).
THE COMPLAINT
Plaintiff makes the following allegations in the First Amended Complaint: In
August 2008, during a previous term of incarceration, Plaintiff worked as a porter in the
health care unit at BMRCC. (Doc. 15, p. 22). Defendant Myers, then a health care
employee at in the dental area of BMRCC, sexually assaulted him on numerous occasions
and threatened him if he revealed the fact. (Id., pp. 12, 22-28). Does 1 and 2, also health
care workers, were aware of the situation but took no action. (Id.). Plaintiff was released
from BMRCC on May 9, 2009. (Id., p. 28).
Immediately after release, Myers sought out Plaintiff at his supervised release site,
told him she was pregnant and continued to sexually assault him on threat of parole
violation. (Id., p. 28). Shortly thereafter, Myers caused Plaintiff’s host site to expel him
and forced him to move in with her. (Id., pp. 29-30). Plaintiff informed a parole officer
(Doe 7) that he had no choice but to live with Myers because he had gotten her pregnant.
(Id., p. 30). After consulting with Myers, Doe 7 (and apparently 8) approved the housing
arrangement. (Id., p. 31). This situation persisted for 11 months until Plaintiff was
reincarcerated. (Id., p. 32). Myers threatened that Plaintiff would not see his child and
that she would have his parental rights terminated if he informed anyone about her
sexual assaults. (Id., p. 33).
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In August 2019, Plaintiff “was informed of the illegality of Defendant Myers[‘]
actions and the criminal aspect of her actions.” (Id.). On August 5, 2019, Plaintiff’s sister
called and spoke with Defendant Brown-Foiles, an IDOC employee tasked with receiving
calls about sexual assaults. (Id., pp. 19, 34). Brown-Foiles responded that it was not illegal
for an employee to sexually assault Plaintiff and that it would not be prosecuted. (Id., p.
34). Plaintiff then reported the situation himself to JTC personnel, but Does 10 and 11
(the PREA coordinator and warden of JTC) refused to report his allegations to the Illinois
State Police or Executive Inspector General’s Office or to provide required PREA support
service to Plaintiff (Id.).
Plaintiff filed a grievance in August 2019 reporting the sexual assault. (Id., pp. 3435). The grievance was denied as moot by McCarty (a member of the Administrative
Review Board (“ARB”)) and Jeffreys (Director of IDOC). (Id., p. 35). They also failed to
report his allegations to the Illinois State Police or Executive Inspector General’s Office.
(Id.).
Plaintiff filed separate grievances at JTC regarding the lack of victim advocacy and
outside counseling, and that (when he found outside services) outside counseling visits
counted against his limited visitor allowance at JTC. (Id., pp. 35-36). Does 10 and 11
refused to respond, and ARB member Knauer refused to review the grievances. (Id., pp.
36-37). A subsequent grievance against Knauer was denied by Jeffreys and ARB member
Johnson. (Id., p. 37).
Plaintiff also names a number of other Doe defendants. Doe 3 was the warden of
BMRCC while he was incarcerated there, while Doe 4 was the PREA Compliance
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Manager at BMRCC and Doe 6 was the Health Care Administrator. (Id., pp. 13-15). Doe
5 was or is the PREA Compliance Manager for IDOC (Id., p. 14). Doe 9 appears to be
Wexford Health Sources. (Id., pp. 17-18). Finally, Doe 12 is the Central Investigations
Department Supervisor.
DISCUSSION
Based on the allegations in the Amended Complaint, the Court designates the
following claims in this pro se action:
Count 1:

Eighth Amendment cruel and unusual punishment claim
against Myers for sexually assaulting Plaintiff during his first
incarceration and supervised release.

Count 2:

Eighth Amendment failure to protect claims against Does 1-9
for failure to protect Plaintiff from Myers’ sexual assaults.

Count 3:

Prison Rape Elimination Act claims against Myers and Does
1-9 for sexually assaulting Plaintiff and failing to protect him
from those sexual assaults.

Count 4:

PREA claims against Does 10-12, Brown-Foiles, Jeffreys,
Johnson, McCarty and Knauer for failing to provide PREA
services to Plaintiff, investigate Plaintiff’s claims or report his
claims to the Illinois State Police.

Count 5:

Fourteenth Amendment due process claims against Does 1012, Brown-Foiles, Jeffreys, Johnson, McCarty and Knauer for
failing to provide PREA services to Plaintiff, investigate
Plaintiff’s claims or report his claims to the Illinois State
Police.

Count 6:

First Amendment retaliation claims against Knauer, Jeffreys,
Does 5, 10, and 11 for depriving Plaintiff of outside visitor
privileges in order to receive outside counseling

Count 7:

Conspiracy claims against Myers, McCarty, Knauer, Johnson,
Jeffreys and Does 1, 2, 7, 8 and 12.

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Count 8:

State law assault, battery and sexual abuse claims against
Myers.

Count 9:

State law intentional infliction of emotional distress claims
against Myers, McCarty, Jeffreys, Knauer, Johnson, and Does
9-12.

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. Any other claim that is
mentioned in the Amended Complaint but not addressed in this Order should be
considered dismissed without prejudice as inadequately pled under the Twombly
pleading standard. 1
Preliminary Dismissals
As an initial matter, Plaintiff has failed to state any claims against Does 3, 4, 6 and
9. Plaintiff essentially alleges that these parties were responsible for his safety, were
responsible for the hiring and supervision of other parties, and “knew or should have
known” of potential risks to inmate safety. Section 1983 liability must be premised on
personal responsibility and participation in the alleged deprivation of rights. Backes v.
Vill. of Peoria Heights, Ill., 662 F.3d 866, 869 (7th Cir. 2011). The doctrine of respondeat
superior cannot be used to hold a supervisor liable for conduct of a subordinate that
violates a plaintiff's constitutional rights. Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir.
1995).

“[S]upervisors who are merely negligent in failing to detect and prevent

subordinates' misconduct are not liable.... The supervisors must know about the conduct

See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)(noting that an action fails to state a claim
upon which relief can be granted if it does not plead “enough facts to state a claim that is plausible on its
face.”).
1

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and facilitate it, approve it, condone it, or turn a blind eye for fear of what they might see.
They must in other words act either knowingly or with deliberate, reckless indifference.”
Jones v. City of Chicago, 856 F.2d 985, 992-93 (7th Cir. 1988) (citations omitted). Plaintiff
does not allege any actions or knowledge on the part of Does 3, 4, 6 or 9 to support a claim
of liability, and they will be dismissed.
Counts 1-3
Plaintiff’s claims under Counts 1-3 are barred by the applicable statute of
limitations. Although typically affirmative defenses such as the statute of limitations are
litigated by the parties after service, they may be addressed on preliminary review when
the defense is apparent on the face of the Complaint. Walker v. Thompson, 288 F.3d 1005,
1009 (7th Cir. 2002); Brownlee v. Conine, 957 F.2d 353, 354 (7th Cir. 1992). Section 1983
claims arising in Illinois are subject to Illinois' two-year statute of limitations on personal
injury claims. Kelly v. City of Chicago, 4 F.3d 509, 511 (7th Cir.1993). The statute of
limitations begins to run when the cause of action accrues. As the Seventh Circuit
summarized:
A cause of action accrues when the plaintiff has a complete and present
cause of action, that is, when the plaintiff can file suit and obtain relief.
Accrual occurs when a plaintiff knows the fact and the cause of an injury.
Importantly, the cause of action accrues even though the full extent of the
injury is not then known or predictable.
Amin Ijbara Equity Corp. v. Vill. of Oak Lawn, 860 F.3d 489, 493 (7th Cir. 2017) (quoting
Wallace v. Kato, 549 U.S. 384, 388 and 391 (2007) and O’Gorman v. City of Chicago, 777 F.3d
885, 889 (7th Cir. 2015)).

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Plaintiff’s allegations in Counts 1-3 span from 2008 to 2012. Plaintiff states that he
“was informed of the illegality of Defendant Myers actions” in August 2019. However,
the statute of limitations runs from the time “the plaintiff knows or has reason to know
of the injury which is the basis of his action.” Brademas v. Indiana Hous. Fin. Auth., 354
F.3d 681, 685 (7th Cir. 2004). There is no question that Plaintiff was aware of the injuries
he alleges at the times they were inflicted, and so the time for bringing suit elapsed in
2014 at the latest. Plaintiff’s allegation that he did not appreciate the illegality of the
conduct until later does not halt the clock. As such, Counts 1-3 are dismissed with
prejudice.
Count 4
To the extent Plaintiff is attempting to bring claims for violation of PREA, there is
no private right of action under that statute. See, e.g., Truly v. Moore, No. 16-cv-00783NJR, 2017 WL 661507, at *4 (S.D. Ill. Feb. 17, 2017) (collecting cases and dismissing PREA
claim involving a strip search and forcing inmates to march with their genitals touching
one another). Count 4 shall therefore be dismissed with prejudice.
Count 5
Plaintiff asserts that Does 10-12, Brown-Foiles, Jeffreys, Johnson, McCarty and
Knauer’s failure to provide PREA services to Plaintiff, adequately investigate Plaintiff’s
claims or report his claims to the Illinois State Police violated his Fourteenth Amendment
equal protection rights.
Plaintiff asserts a class-of-one claim. (Doc. 15, p. 43). “[A] class-of-one plaintiff
must show (1) that he has been intentionally treated differently from others similarly
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situated, and (2) that there is no rational basis for the difference in treatment.” Fares Pawn,
LLC v. Indiana Dep't of Fin. Institutions, 755 F.3d 839, 845 (7th Cir. 2014) (citing Village of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000)). Plaintiff does not, however, allege that he
was treated differently from other similarly-situated prisoners. He only states that these
Defendants failed to adequately investigate, act upon or report his 8+ year old allegations.
No reference is made to different treatment for other similarly-situated inmates, and to
state a class-of-one claim, “difference” is the first requirement. According, Count 5 is
dismissed.
Count 6
To succeed on a First Amendment retaliation claim, a 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) the First
Amendment activity was at least a motivating factor in the defendant’s decision to take
the retaliatory action. Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009).
While filing a PREA complaint and related grievances may satisfy the first prong,
Plaintiff fails to satisfy the remaining requirements. Plaintiff does not complain that he
is being deprived of visitors, only that up to five of his allotted visitor slots are taken up
by outside counselors he has engaged. This falls short of a deprivation likely to deter the
report of sexual assault or failure to investigate. Further, Plaintiff does not plead that his
grievances or PREA complaint were a motivating factor in the decision to count these
outside counselors against his visitor allowance. Accordingly, Count 6 is dismissed.
Count 7
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To prevail on a conspiracy claim, “the plaintiff must show that (1) the individuals
reached an agreement to deprive him of his constitutional rights, and (2) overt acts in
furtherance actually deprived him of those rights.” Beaman v. Freesmeyer, 776 F.3d 500,
510 (7th Cir. 2015).
Here, Plaintiff has not pled any facts to support his claim of conspiracy, but simply
recited the elements. Such threadbare and conclusory are not adequate to state a claim.
See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (court not required to accept as true “legal
conclusions[, or t]hreadbare recitals of the elements of a cause of action, supported by
mere conclusory statements.”). Plaintiff must provide the Court with “some specific facts
to ground those legal clams.” Brooks v. Ross, 578 F.3d 574, 581(7th Cir. 2009). Accordingly,
Count 7 is dismissed.
Counts 8 and 9
Finally, Plaintiff alleges state law tort claims for intentional infliction of emotional
distress and negligence. Generally, after “a court has dismissed all the federal claims in
a lawsuit before trial, it should relinquish jurisdiction over supplemental state law claims
rather than resolve them on the merits.” Cortezano v. Salin Bank & Tr. Co., 680 F.3d 936,
941 (7th Cir. 2012). The Court finds that this is appropriate here, and so dismisses Counts
8 and 9.
Disposition
For the foregoing reasons, Plaintiff’s Amended Complaint (Doc. 15) is
DISMISSED without prejudice for failure to state a claim. Counts 1-4 are DISMISSED
with prejudice. Should Plaintiff wish to proceed with his case, he shall file a Second
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Amended Complaint on or before July 9, 2021. It is strongly recommended that Plaintiff
use the form designed for use in this District for civil rights actions. He should label the
pleading “Second Amended Complaint” and include Case Number 20-cv-410.
The amended complaint should conform to the designation of claims into the
Counts enumerated by the Court in this Order. Plaintiff shall identify by name or Doe
designation, each Defendant alleged to be liable under each Count, as well as the actions
alleged to have been taken by that Defendant. New individual Defendants may be added
if they were personally involved in the constitutional violations. Plaintiff should attempt
to include the facts of his case in chronological order, inserting Defendants' names where
necessary to identify the actors and the dates of any material acts or omissions.
An amended complaint supersedes and replaces any prior complaint, rendering
the prior complaint void. See Flannery v. Recording Indus. Ass'n of Am., 354 F.3d 632, 638
n.1 (7th Cir. 2004). The Court will not accept piecemeal amendments to the complaint.
Thus, the Second Amended Complaint must contain all the relevant allegations in
support of Plaintiff's claims and must stand on its own, without reference to any other
pleading. Should the Second Amended Complaint not conform to these requirements, it
shall be stricken. Failure to file an amended complaint shall result in the dismissal of this
action with prejudice. Such dismissal shall count as one of Plaintiff's three allotted
“strikes” within the meaning of 28 U.S.C. § 1915(g).
No service shall be ordered on any Defendant until after completion of the § 1915A
review of the First Amended Complaint.

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In order to assist Plaintiff in preparing his amended complaint, the Clerk is
DIRECTED to mail Plaintiff a blank civil rights complaint form.
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: June 7, 2021
_________________________
DAVID W. DUGAN
United States District Judge

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