Harper v. Hart et al

Filing 57

Order for Service of Process: Plaintiff's Motions to Amend (Docs. 48, 50) are GRANTED. The Clerk of Court is DIRECTED to re-label document 50 as the "amended complaint." The Clerk of Court shall replace the John Doe sergeant from the amended complaint with Sgt. Leposky. Claims 1 and 2 are modified as explained in this order to include additional defendants. The Clerk of Court is DIRECTED to serve Defendants C/O Koronado, C/O Koronado, C/O Huston, C/O Hagein, C/O Kitchen, C/O G arcia, C/O Knight, and Sgt. Leposky consistent with this Order. Defendants' Motion to Stay (Doc. 54) is GRANTED, and the existing Defendants (Bent, Hart, and Giacomo) shall file any motion on the exhaustion of administrative remedies by March 1, 2024. Signed by Judge David W. Dugan on 11/22/2024. (kgk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
EAZS A. HARPER, B83567,
Plaintiff,
vs.
ZACHARY HART,
QUINTON BENT,
MORGAN GIACOMO,
ANTHONY WILLS,
Defendants.

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Case No. 24-cv-1157-DWD

MEMORANDUM & ORDER
DUGAN, District Judge:
Plaintiff Eazs A. Harper, an inmate of the Illinois Department of Corrections
(IDOC) housed at Menard Correctional Center (Menard), brings this civil rights action
pursuant to 42 U.S.C. § 1983 for alleged deprivations of his rights. (Doc. 1). Plaintiff’s
allegations concern an alleged assault upon his arrival at Menard in April of 2024,
retaliation, and a lack of medical care for his injuries. Most recently, Plaintiff submitted
multiple motions seeking leave to file an amended complaint, but his amended pleading
and exhibits strongly suggested Plaintiff had not exhausted his administrative remedies
prior to filing this lawsuit. As such, the Court issued a show cause order directing
Plaintiff to address this defect. Plaintiff has now responded. (Doc. 53). The Court finds
Plaintiff’s responsive assertions sufficient for this case to at least proceed beyond initial
review.

In this Order, the Court will modify the previously designated claims to

incorporate additions from the amended complaint, it will direct service on new parties,
and it will modify the existing Scheduling Order (Doc. 47) for existing parties.
Plaintiff’s Motions (Docs. 48, 50) which contain Plaintiff’s Amended Complaint are
now before the Court for preliminary review pursuant to 28 U.S.C. § 1915A. Under
Section 1915A, the Court is required to screen prisoner complaints to filter out nonmeritorious claims. See 28 U.S.C. § 1915A(a)-(b). 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).
Background
Upon initial review of Plaintiff’s underlying complaint, the Court designated the
following claims:
Claim 1:

Eighth Amendment excessive force claim against Defendants Bent
and Hart for the events on April 3, 2024;

Claim 2:

Eighth Amendment deliberate indifference claim against
Defendants Bent, Hart, and Morgan for depriving Plaintiff of
medical care or at least the ability to wash the chemical agent off
of his body after the events of April 3, 2024;

Claim 3:

Eighth Amendment cruel and unusual punishment claim against
Defendant Bent for depriving Plaintiff of food, showers, and
access to medical care and mail/grievances from April 3, 2024, to
present;

Claim 4:

First Amendment retaliation claim against Defendants Hart and
Bent for their actions against Plaintiff;

Claim 6:

State law assault and battery claim against Hart and Bent for the
April 3, 2024, events.

(Doc. 8 at 9-10).
Amended Complaint
Plaintiff’s first Motion to Amend (Doc. 48) contains a brief introduction explaining
that he has identified additional parties who were present and/or participated on the day
of his alleged assault by Defendants Bent and Hart. (Doc. 48 at 1-2). The Motion is also
accompanied by the Court’s civil rights complaint template form with basic information
about Plaintiff’s litigation history and use of the grievance procedure. Plaintiff also
attached grievance documents that he indicates demonstrate exhaustion of his
administrative remedies. (Doc. 48-1 at 4-5, Doc. 48-2 at 1-6). The grievance submitted
was prepared by Plaintiff on April 4, 2024, and contained allegations that Defendants
Bent and Hart assaulted him on April 3, 2024, threatened him about a pre-existing
lawsuit, sprayed him with mace, placed him in a cell naked with no running water or
clothing, and refused him medical care. (Doc. 48-2 at 1-2). On April 10, 2024, the
grievance was denied emergency status, and the next day a counselor responded that
Intel and IA found the incident to be unsubstantiated. (Doc. 48-2 at 1). The grievance
was forwarded to the grievance officer for second level appeal on April 25, 2024, and the
grievance officer responded on May 9, 2024. (Doc. 48-2 at 3-5). On June 3, 2024, the Chief
Administrative Officer concurred with the grievance officer’s finding (Doc. 48-2 at 4), and

on June 10, 2024, Plaintiff appealed (Id.). On July 8, 2024, the Administrative Review
Board denied the grievance as appropriately addressed at the prison. (Doc. 48-2 at 6).
Plaintiff’s substantive proposed amended complaint contains claims against eight
new defendants. (Doc. 50). The significant additions apply to existing Claims 1 and 2—
the allegations of excessive force by Bent and Hart, and the denial of medical care by Bent,
Hart and Nurse Morgan Giacomo. Specifically, Plaintiff now alleges that on April 3, 2024,
upon his arrival to Menard Defendants C/O Koronado, C/O Koronado, C/O Huston,
C/O Hagein, C/O Kitchen, C/O Garcia, C/O Knight, and Sgt. Leposky 1 were all present
as Hart and Bent took him to a holding area for a strip search. Bent and Hart asked if
Plaintiff was the individual that Koronado and Garcia were talking about who had filed
a lawsuit against brother and cousin Lance Koronado. (Doc. 50 at 9).
Plaintiff alleges that after Bent and Hart handcuffed and maced him, then
Defendants C/O Koronado, C/O Koronado, C/O Garcia, and C/O Knight all
participated in beating him. (Doc. 50 at 9). He claims he sustained severe injuries to his
face. He was then yanked off of the ground by C/Os Bent, Hart, Garcia, Kitchen,
Koronado, Koronado, Knight, Huston, and Hagein and they continued to batter his
whole body.

(Doc. 50 at 10).

Plaintiff informed all of the Defendants, including

Defendants Morgan Giacomo and Leposky that he was asthmatic and had bronchitis and
could not breath. He was also yelling out in pain and asking for medical care as
Defendants Bent and Hart escorted him to a cell. (Doc. 50 at 10). He faults all defendants,
1 In the Amended Complaint (Doc. 50), Plaintiff referred to Leposky as a “John Doe Sergeant,” but with his

response to the show cause order, he included a Motion to Supplement, wherein he asks to replace John
Doe Sergeant with Sergeant Leposky.

including the eight new defendants, for leaving him in the cell naked, bleeding, covered
in mace, and without any medical treatment.
His allegations then resume consistent with his original complaint, explaining that
Bent and his girlfriend Nurse Morgan Giacomo continued to refuse him care throughout
April of 2024 and through June of 2024. He faults Warden Anthony Wills for denying
him medical treatment “even after he seen” that Plaintiff was assaulted. (Doc. 50 at 12).
In a section labeled “claims for relief,” Plaintiff argues that Defendant Wills has failed to
take any disciplinary action to punish or curb physical abuse by correctional officers. He
claims this is a violation of Administrative Directives, his Eighth Amendment rights, and
that it constitutes assault and battery under state law. (Doc. 50 at 13). He faults all
defendants for failing to follow internal prison regulations and rules. (Doc. 50 at 14).
Plaintiff seeks purely monetary damages. (Doc. 50 at 14-15).
Based on the allegations in the Amended Complaint, the Court will modify
previously designated Claims 1 and 2 as indicated by the underlined portions:
Claim 1:

Eighth Amendment excessive force or failure to intervene claim
against Defendants Bent, Hart, C/O Koronado, C/O Koronado, C/O
Huston, C/O Hagein, C/O Kitchen, C/O Garcia, C/O Knight, and
Sgt. Leposky for the events on April 3, 2024;

Claim 2:

Eighth Amendment deliberate indifference claim against
Defendants Bent, Hart, Morgan, C/O Koronado, C/O Koronado,
C/O Huston, C/O Hagein, C/O Kitchen, C/O Garcia, C/O Knight,
and Sgt. Leposky for depriving Plaintiff of medical care or at least
the ability to wash the chemical agent off of his body after the
events of April 3, 2024;

The parties and the Court will use this designation in all future pleadings and orders
unless otherwise directed by a judicial officer of this Court. Any claim that is mentioned
in the Complaint but not addressed in this Order is considered dismissed without
prejudice as inadequately pled under Twombly. See Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007) (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”).
Analysis
As an initial matter, the Court notes that on November 7, 2024, it issued an Order
to Show Cause, directing Plaintiff to explain why he should be allowed to proceed in this
lawsuit, which was filed on April 30, 2024, when his exhibits show his grievance was not
exhausted until July 8, 2024. (Doc. 52). Plaintiff argues in response that he attempted to
submit multiple grievances after the April 3, 2024, incident, but witnessed grievances and
requests for medical care being discarded by prison staff. (Doc. 53). He alleges that
ultimately, he was only able to submit the April 4, 2024, grievance that was eventually
exhausted on July 8, 2024, by giving it to an inmate in a neighboring cell for submission
on his behalf. He further alleges he had not heard anything about that grievance or its
status until after he submitted his complaint in this case and received Defendants’
response to his Motion for a Preliminary Injunction. Thus, he claims, at the time he filed
the case he was under the impression the grievance process was a dead-end for him, and
given his perceived threat to his physical safety, he believed resorting to litigation was
his only option. While this explanation may not ultimately carry the day during motion
practice or a hearing on the issue of exhaustion of administrative remedies, the Court

finds this explanation is at least substantive enough to suggest a reason why Plaintiff
sued before learning the outcome of the grievance process. The Court is convinced that
it is appropriate for the case to proceed beyond initial review so that the parties may
address this issue in greater depth via motion practice.
Plaintiff’s new allegations in Claims 1 and 2 are sufficient to proceed beyond initial
review against the newly added Defendants-- C/O Koronado, C/O Koronado, C/O
Huston, C/O Hagein, C/O Kitchen, C/O Garcia, C/O Knight, and Sgt. Leposky. Plaintiff
alleges that all of these individuals were present during and witnessed or participated
the alleged assault against him on April 3, 2024, and they denied him medical care after
the fact.
The existing Defendants have moved (Doc. 54) to stay the Scheduling Order,
which currently requires them to file a dispositive motion on the exhaustion of
administrative remedies by December 6, 2024. The Court finds that this request is
appropriate, because it will now issue service on eight new defendants. Thus, the Motion
(Doc. 54) will be GRANTED, and the Defendants’ dispositive motion deadline shall be
extended to March 1, 2024. This should allow ample time for the newly added defendants
to be served, to answer, and to prepare a motion on exhaustion.
Disposition
Plaintiff’s Motions to Amend (Docs. 48, 50) are GRANTED. Document 50 shall
serve as the Amended Complaint, and the Clerk of Court is DIRECTED to re-label
Document 50 as “Amended Complaint.”

IT IS HEREBY ORDERED THAT Claims 1 and 2 of the Amended Complaint
(Doc. 50) survives initial screening as described above against Defendants C/O
Koronado, C/O Koronado, C/O Huston, C/O Hagein, C/O Kitchen, C/O Garcia, C/O
Knight, and Sgt. Leposky.

The previously designated Claims 1-4 and 6 against

Defendants Hart, Bent, and Giacomo remain unchanged.
The Clerk of Court is DIRECTED to prepare for Defendants C/O Koronado, C/O
Koronado, C/O Huston, C/O Hagein, C/O Kitchen, C/O Garcia, C/O Knight, and Sgt.
Leposky: (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 (Doc. 50), and this Memorandum and Order to
Defendants’ 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 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. 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 Administrative Order No. 244, Defendants need only respond to the issues
stated in this Merits Review Order.
If judgment is rendered against Plaintiff, and the judgment includes the payment
of costs under Section 1915, Plaintiff will be required to pay the full amount of the costs,
regardless of whether his application to proceed in forma pauperis was granted. See 28
U.S.C. § 1915(f)(2)(A).
Plaintiff is ADVISED that he is under a continuing obligation to inform the Clerk
of Court and each opposing party of any address changes; the Court will not
independently investigate his whereabouts. This shall be done in writing and not later
than 14 days after a transfer or other change of 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 failure to prosecute. Fed. R. Civ. P. 41(b).
Defendants’ Motion to Stay (Doc. 54) is GRANTED.

Defendants’ existing

deadline of December 6, 2024, to file a motion on the exhaustion of administrative
remedies is hereby extended to March 1, 2024.
IT IS SO ORDERED.
Dated: November 22, 2024

/s David W. Dugan
______________________________
DAVID W. DUGAN
United States District Judge