Appeal from the United States District Court for the Central District of Illinois.
No. 94-CV-3140 -- Richard Mills, Judge.
Before POSNER, Chief Judge, and ROVNER and DIANE P. WOOD, Circuit Judges.
DIANE P. WOOD, Circuit Judge.
Sexual harassment does not necessarily occur only when a man harasses a woman, as Eric Walker's allegations illustrate. Walker was an inmate at Illinois's Taylorville Correctional Center who raised a variety of claims against Taylorville, a number of its employees, and other institutions, alleging violations of his civil rights under 42 U.S.C. sec. 1983. The district court denied his petition to proceed in forma pauperis and dismissed the complaint, finding that it did not "articulate a violation of plaintiff's constitutional rights under color of state law" and that Walker had named some individuals and entities that could not be sued. Although we agree that most of Walker's complaint was correctly dismissed, we reverse the dismissal of his claim that correctional counselor Debbie Dinning sexually harassed him and remand for further proceedings.
Walker's pro se complaint alleged that in April of 1994, Dinning, a counselor for inmates in Taylorville housing unit four, sexually assaulted and harassed him on three different occasions. First, he claimed, on about April 18 and 19, 1994, Dinning sexually abused him by "rubbing plaintiff arme and stateing the word '(hone[y])' [or perhaps 'bone'--the handwriting is unclear]," when he went to her for help concerning threats and harassment from other inmates. Next, on April 26 or 27, while Walker was in bed sleeping, Dinning allegedly put her hand under his blanket, "graded plaintiff penus and sroked it 3 or 4 times," and said "you know you like it, now come on its time to get up." Finally, two or three days later, as Walker was entering a shower, Dinning approached and told him "your not supposted to be takening a shower this time of day," and then said "I've seen them bigger, but you got enought for me."
After the third alleged incident, Walker asked to see the Warden. Before he could do so, however, Dinning wrote him up and placed him in segregation, on the strength of a complaint from three other inmates accusing Walker of threatening to kill another inmate. Meanwhile (and, as far as we can tell, in a manner unrelated to the other allegations), Walker claimed that he repeatedly went to Dinning and co-defendant Bill Estes, who was a counselor for a Gateway Foundation drug program, for help with threats and harassment from other inmates. Neither one assisted him, nor did any of the other prison employees to whom Walker spoke.
On May 25, 1994, Walker filed his petition to proceed in forma pauperis, attached to which was his pro se complaint under 42 U.S.C. sec. 1983, in which he raised the following claims: (1) he was deprived of his rights under the 8th and 4th Amendments to the U.S. Constitution when he was sexually assaulted by Dinning, (2) the defendants retaliated against him for exercising his rights under the First Amendment by threatening to kick him out of the Gateway drug program as a result of his complaints about inmate harassment to Estes and Dinning, and (3) he was unfairly disciplined and deprived of his right to procedural and substantive due process when he was placed in segregation. He named as defendants the Taylorville Correctional Center, the Gateway Foundation, Taylorville Warden Furrie, Bill Estes, and Debbie Dinning. In his complaint, Walker asked for restoration of 90 days' good time credit and $5 million in damages. (In his appellate brief, by contrast, he appears to use the taking of the 90 days' credit only as a measure of his $5 million claim for damages. He never expressly renews a request for restoration of the 90 days.)
After his IFP petition was filed, Walker also filed a motion for a temporary restraining order and another motion for a preliminary injunction, to which he attached additional information and, it seems, additional claims. In the preliminary injunction motion, for example, he alleged that he was afraid the defendants would open his legal mail outside of his presence. We do not consider these claims, as they were never added to the proposed complaint by amendment or otherwise properly presented to the district court. Nor do we consider the additional materials Walker filed, which would take this matter beyond the scope of Fed. R. Civ. P. 12(b)(6) and 28 U.S.C. sec. 1915. Instead, we confine our inquiry to the question whether the district court correctly denied Walker's petition to proceed IFP and, upon Walker's failure to pay the required filing fee, correctly dismissed the complaint.
Initially, we note that because Walker's petition was filed in the district court in May 1994, and his initial brief was filed in this court on July 10, 1995, we apply the version of 28 U.S.C. sec. 1915 that existed prior to the enactment of the Prison Litigation Reform Act of 1996, Pub. L. No. 104-134. We noted in Robbins v. Switzer, 104 F.3d 895, 897 (7th Cir. 1997), that the financial filing "obligations under the [PLRA] depend entirely on the filing date of the appeal." Also, as in Hutchinson v. Spink, No. 96-1842, 1997 WL 584549, at *1 (7th Cir. Sept. 23, 1997), because Walker's appeal was filed before April 24, 1996, the effective date of the PLRA, we look to the former version of sec. 1915(d) to see if the claim was "frivolous or malicious," rather than asking in addition whether the proposed complaint failed to state a claim upon which relief can be granted, as the amended sec. 1915(e) (2)(B) requires.
The district court dismissed the complaint before it as frivolous, finding that even though Walker was indigent, the complaint failed to state "an arguable cause of action under the Civil Rights Act." It concluded that "Dinning did not sexually harass the plaintiff 'under color of state law,' and the plaintiff has raised no constitutional challenge to the disciplinary proceedings against him." Elaborating its finding with respect to Dinning, the court held that she was not exercising power conferred by state law, but rather was pursuing her own interests, at the time of the alleged harassment. It also found Walker's allegations utterly lacking with respect to Dinning's disciplinary report and the purported failure of the other defendants to take action on his complaints about threats and harassment by other inmates. Last, as we have already mentioned, the court found that Taylorville Correctional Center and the Gateway Foundation were not suable entities for purposes of sec. 1983. The allegations against Furrie failed because the complaint did not so much as assert that he was involved directly and personally, or that anything was done with his knowledge and consent. The court did not mention Estes by name, although its rationale with respect to the allegations against Dinning that related to inmate harassment appear to apply to him as well, since it referred to "defendants" in the plural.
We agree with the district court that Walker's allegations against Warden Furrie, Estes, and Dinning for counts other than the sexual harassment allegations were frivolous and did not even arguably state a claim against them. (Because Walker does not appeal the district court's dismissal of Taylorville and Gateway, we do not address those claims further.) First, to the extent that these claims relate to the outcome of his disciplinary proceedings, they are barred by Heck v. Humphrey, 512 U.S. 477 (1994) and Edwards v. Balisok, 117 S.Ct. 1584 (1997). See also Lusz v. Scott, No. 94-1601, 1997 WL 615745, at *3 (7th Cir. Oct. 7, 1997). Walker cannot maintain a sec. 1983 action, whether for restoration of good time credits or for damages, if a judgment in his favor would necessarily imply the invalidity of the outcome of the disciplinary proceeding.
To the extent Walker is trying to assert claims unrelated to the disciplinary proceeding, his suit still fails against Furrie, Estes, and Dinning apart from the sexual harassment claim. Walker has not alleged the personal involvement required by our cases to support a claim against Furrie under any of his theories. See Whitford v. Boglino, 63 F.3d 527, 530-31 (7th Cir. 1995). Similarly, the claims against Estes and Dinning for failure to take action to protect him contained the seeds of their own destruction. Walker never alleged that his disciplinary ticket was based on fabricated information or that it was retaliatory, nor does he claim that the proceedings themselves denied him due process. (As we noted above, such a claim would be futile in any event after ...