Johnson v. IDOC et al
Order for Service of Process upon Devin E. Sullens. Count 1 will proceed against Devin E. Sullens but is DISMISSED without prejudice as to John Doe. IDOC, the official capacity claim, and Count 2 are DISMISSED with prejudice. The Clerk of Court is DIRECTED to terminate IDOC and John Doe. Plaintiff's Motion for Recruitment of Counsel (Doc. 3) is DENIED. Signed by Judge David W. Dugan on 11/19/2021. (ksp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JAMES JOHNSON, #R43615,
DEVIN E. SULLENS, and
JOHN DOE, Shift Commander,
Case No. 3:21-cv-00450-DWD
MEMORANDUM AND ORDER
DUGAN, District Judge:
Plaintiff James Johnson, an inmate of the Illinois Department of Corrections
(“IDOC”), filed the instant lawsuit pursuant to 42 U.S.C. § 1983 for an alleged deprivation
of his constitutional rights at Lawrence Correctional Center. This case is now before the
Court for preliminary review of the Complaint under 28 U.S.C. § 1915A. Any portion of
the Complaint that is legally frivolous, malicious, fails to state a claim for relief, or
requests money damages from an immune defendant must be dismissed. 28 U.S.C.
Plaintiff makes the following allegations in the Complaint (Doc. 1): Plaintiff and
C/O Sullens exchanged words on July 18, 2020. Sullens told Plaintiff he would return to
“f*** your s*** up so get ready.” When Sullens returned, he conducted a shakedown of
Plaintiff’s cell during which he broke Plaintiff’s property and confiscated his legal papers,
books, and magazines. Sullens actions were taken in retaliation for Plaintiff writing
grievances regarding Sullens’s abuse of power. Sullens took Plaintiff’s property to John
Doe Shift Commander and they destroyed it.
IDOC, a state government agency, is not subject to suit for money damages under
§ 1983. Will v. Mich. Dep't of State Police, 491 U.S. 58, 66-71 (1989); Thomas v. Illinois, 697
F.3d 612, 613 (7th Cir. 2012). IDOC will, therefore, be dismissed with prejudice.
Plaintiff seeks to bring claims against Defendants in their individual and official
capacities. Because Plaintiff seeks monetary damages, any claim(s) may proceed against
Defendants only in their individual capacity and the official capacity claim will be
dismissed. See Brown v. Budz, 904 F.3d 904, 918 (7th Cir. 2005) (claim for monetary
damages must be brought against defendant in his individual capacity only); Power v.
Summers, 226 F.3d 815, 818 (7th Cir. 2000) (official capacity claim against an individual is
really a lawsuit for money damages against the State, which is barred by the Eleventh
Amendment and the doctrine of sovereign immunity).
Based on the allegations in the Complaint, the Court designates the following
claims in this pro se action:
First Amendment claim against Sullens and John Doe for
confiscating and destroying Plaintiff’s property on July 18,
2020 in retaliation for Plaintiff filing grievances against
Fourteenth Amendment deprivation of property claim
against Sullens and John Doe for depriving Plaintiff of his
Prison officials may not retaliate against inmates for filing grievances, exercising
First Amendment rights, or otherwise complaining about their conditions of
confinement. See, e.g., Gomez v. Randle, 680 F.3d 859, 866 (7th Cir. 2012). To state a
retaliation claim, a plaintiff must allege that “(1) he engaged in activity protected by the
First Amendment; (2) he suffered a deprivation likely to deter such activity; and (3) the
First Amendment activity was at least a motivating factor in the decision to impose the
deprivation.” Hawkins v. Mitchell, 756 F.3d 983, 996 (7th Cir. 2014). The allegations in the
Complaint are sufficient to proceed on the claim in Count 1 against Sullens but not
against John Doe. There are no allegations that suggest John Doe acted in retaliation or
was even aware of the grievances Plaintiff filed against Sullens. As such, Count 1 will be
dismissed against John Doe.
Plaintiff alleges that various items of his personal property were destroyed or
confiscated as a result of the cell shakedown and he seeks compensation for those items.
To state a property loss claim under the Fourteenth Amendment, Plaintiff must establish
a deprivation of liberty or property without due process of law. If the state provides an
adequate remedy for the deprivation of property, Plaintiff has no civil rights claim.
Hudson v. Palmer, 468 U.S. 517, 530–36 (1984) (availability of damages remedy in state
claims court is an adequate, post-deprivation remedy). In that vein, the Seventh Circuit
has found that Illinois provides an adequate post-deprivation remedy in an action for
damages in the Illinois Court of Claims. Murdock v. Washington, 193 F.3d 510, 513 (7th
Cir. 1999); Stewart v. McGinnis, 5 F.3d 1031, 1036 (7th Cir. 1993); 705 Ill. Comp. Stat. 505/8
(1995). For these reasons, Count 2 will be dismissed with prejudice.
Motion for Recruitment of Counsel
Civil litigants do not have a constitutional or statutory right to counsel. Pruitt v.
Mote, 503 F.3d 647, 649 (7th Cir. 2007). A district court considering an indigent plaintiff's
request for counsel must first consider whether the plaintiff has made reasonable
attempts to secure counsel on his own or been effectively precluded from doing so; and,
if so, whether the difficulty of the case factually and legally exceeds his capacity as a
layperson to present it. Id. at 654-655. If a plaintiff has not made a reasonable attempt to
obtain counsel on his own, the court should deny the request. Id. at 655.
Here, Plaintiff has not submitted any proof of a reasonable effort to obtain counsel
and the motion will be denied. If Plaintiff encounters difficulties in self-representation as
this case proceeds, he may refile his motion seeking recruitment of counsel. If he chooses
to renew his request, he should submit rejection letters from at least 3 attorneys to
demonstrate that he has made reasonable efforts to obtain counsel on his own.
The Complaint survives review under 28 U.S.C. § 1915A in part and is dismissed
in part as follows: Count 1 will proceed against Devin E. Sullens but is DISMISSED
without prejudice as to John Doe. IDOC, the official capacity claim, and Count 2 are
DISMISSED with prejudice. The Clerk of Court is DIRECTED to terminate IDOC and
The Clerk of Court shall prepare for Devin E. Sullens: (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 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 the Defendant, and the Court will require
the Defendant to pay the full costs of formal service, to the extent authorized by the
Federal Rules of Civil Procedure.
If a Defendant cannot be found at the work address provided by 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 and shall not be maintained in the court
file or disclosed by the Clerk.
Defendant is 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 Administrative Order No. 244, Defendant need only respond to the issues stated in this
Merit Review Order.
Plaintiff’s Motion for Recruitment of Counsel (Doc. 3) is DENIED.
Plaintiff is ADVISED that if judgment is rendered against him and the judgment
includes the payment of costs under 28 U.S.C. §1915. See 28 U.S.C. § 1915(f)(2)(A).
Plaintiff is further ADVISED that he is under a continuing obligation to keep the
Clerk of Court and the 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: November 19, 2021
David W. Dugan
United States District Judge
Notice to Plaintiff
The Court will take the necessary steps to notify the appropriate defendants of your
lawsuit and serve them with a copy of your complaint. After service has been achieved,
the defendants will enter their appearance and file an Answer to the complaint. It will
likely take at least 60 days from the date of this Order to receive the defendants’ Answers,
but it is entirely possible that it will take 90 days or more. When all of the defendants
have filed Answers, the Court will enter a Scheduling Order containing important
information on deadlines, discovery, and procedures. Plaintiff is advised to wait until
counsel has appeared for the defendants before filing any motions, to give the defendants
notice and an opportunity to respond to those motions. Motions filed before defendants’
counsel has filed an appearance will generally be denied as premature. Plaintiff need not
submit any evidence to the Court at his time, unless otherwise directed by the Court.
The Court wishes to remind the Plaintiff that litigation is often viewed a series of hurdles
that the Plaintiff must clear to get to another hurdle. Initial screening is such a hurdle, but
it is a very low one for the Plaintiff to clear. As noted above, surviving initial screening
only requires the bare statement of a claim that, if proven, could entitle Plaintiff to some
relief. At trial, they will need to prove by a preponderance of evidence that the facts
alleged actually occurred and that those facts satisfy the legal requirements for recovery.
Trial is the highest and most difficult of hurdles for any Plaintiff to clear.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?