United States District Court, N.D. Illinois
February 23, 2004.
EARL DORSEY, JR., Plaintiff
COOK COUNTY SHERIFF MICHAEL SHEAHAN, OFFICER A. BROWN, JOHN MAUL, CHIEF S. VIVADO and SGT. KAZKOFF, Defendants
The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge Page 2
This matter is before the court on Defendants' motion to dismiss. For
the reasons stated below, we grant the motion to dismiss.
Plaintiff Earl Dorsey, Jr. ("Dorsey") is an inmate at the Cook County
Jail. Dorsey alleges that on April 1, 2003 a fight broke out amongst the
inmates in his cell block. He contends that after the fight ended the
guards ordered all the inmates out of their cells. According to Dorsey,
he was putting his shirt on as he exited his cell and Defendant "A,
Brown" ("Brown") struck Dorsey in the jaw. Dorsey claims that the fight
was over by that point and he in no way provoked Brown. Dorsey claims
that afterwards his jaw was swollen and painful and that he was
taken to the hospital. After the incident Dorsey claims that Defendant
Sergeant Robert Krauskopf ("Krauskopf") threatened to retaliate against
Dorsey if he filed a complaint or civil suit regarding the incident.
Dorsey alleges that Krauskopf told him that if he "filed any complaints
or court action that the county would give me a case for fighting a
officer even thought I had nothing to do with anything." [sic.]. Dorsey
also alleges that the medical staff at the jail were deliberately
indifferent to his medical needs. He filed the instant complaint pro se
alleging that Defendants violated his constitutional rights in violation
of 42 U.S.C. § 1983 ("Section 1983").
In ruling on a motion to dismiss, the court must draw all reasonable
inferences that favor the plaintiff, construe the allegations of the
complaint in the light most favorable to the plaintiff, and accept as
true all well-pleaded facts and allegations in the complaint. Thompson
v. Illinois Dep't of Prof'l Regulation, 300 F.3d 750, 753 (7th Cir.
2002); Perkins v. Silverstein, 939 F.2d 463, 466 (7th Cir. 1991). The
allegations of a complaint should not be dismissed for a failure to state
a claim "unless it appears beyond doubt that the plaintiff can prove no
set of facts in support of his claim which would entitle him to relief."
Conley v, Gibson, 355 U.S. 41, 45-46 (1957). Nonetheless, in order to
withstand a motion to dismiss, a complaint must allege the "operative
facts upon which each claim is based, Kyle v. Morton High School,
144 F.3d 448, 444-45 (7th Cir. 1998); Lucien v. Preiner, 967 F.2d 1166,
1168 (7th Cir. 1992), The plaintiff need not allege all of the facts
involved in the claim and can plead conclusions. Higgs v. Carter,
286 F.3d 437, 439 (7th Cir. 2002); Kyle, 144 F.3d at 455. However, any
conclusions pled must
"provide the defendant with at least minimal notice of the claim," Id.,
and the plaintiff cannot satisfy federal pleading requirements merely "by
attaching bare legal conclusions to narrated facts which fail to outline
the bases of [his] claim." Perkins, 939 F.2d at 466-67. Complaints filed
by pro se litigants are to be construed liberally and are not to be held
to the same standard as those drafted by attorneys. Me Cormick v. City of
Chicago, 230 F.3d 319, 325 (7th Cir. 2000).
Defendants seek to dismiss claims against the various Defendants both
in their individual capacities and in their official capacities.
I. Official Capacity Claims
Defendants seek to dismiss all claims against Defendants in their
official capacities. A suit against an individual defendant in his
official capacity is the equivalent of a suit against the governmental
entity the individual represents, Gossmeyer v. McDonald, 128 F.3d 481,
494 (7th Cir. 1997). Therefore, to the extent that Dorsey seeks to sue
Defendants in their official capacity Dorsey is in essence suing Cook
County. The doctrine of respondeat superior cannot be utilized to hold
local governmental units liable for Section 1983 violations "unless the
deprivation of constitutional rights is caused by a municipal policy or
custom." Kujawski v. Board of Comm'rs. Of Bartholomew County, Indiana,
183 F.3d 734, 737 (7th Cir. 1999) (stating that county could not be held
liable unless violation was caused by county policy); Gossmeyer, 128 F.3d
Defendants argue that Dorsey merely complains about the officer hitting
him and the
other officer threatening to retaliate against him and Dorsey fails
to allege that any County policy or custom caused him harm. We agree that
Dorsey's complaint is focused on the alleged wrongdoing by Brown and the
alleged retaliation by Krauskopf. He does not allege that any County
policy or custom is responsible for the alleged misconduct. Therefore, we
grant the motion to dismiss all official capacity claims.
II. individual Capacity Claims
Defendants also seek to dismiss all individual capacity claims because:
some of the Defendants were not personally involved in the alleged
misconduct, some of the Defendants are entitled to qualified immunity,
Dorsey failed to exhaust his administrative remedies, and Dorsey failed
to state a proper retaliation claim.
A. Defendants' Personal Involvement
The doctrine of respondeat superior cannot be utilized for a Section
1983 claim to hold persons liable that are not involved in the alleged
wrongful conduct. Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir.
2001), Therefore, in order to hold a defendant liable in his individual
capacity the individual defendant must be "personally responsible for the
deprivation of a constitutional right," which can be illustrated by the
fact that the defendant "directed the conduct causing the constitutional
violation," the violation "occurred with his knowledge or consent," or
that the defendant acted with "`deliberate, reckless indifference' for
the conduct of subordinates," Id.
Dorsey has not alleged that Defendant Michael Sheahan ("Sheahan") had
involvement in the alleged wrongful conduct which harmed Dorsey.
Neither has Dorsey alleged any personal involvement by Defendant "Chief
S. Vivado" ("Vivado") in the Brown incident, the threat of retaliation,
or the inadequate medical care, Dorsey has not made any allegations that
would suggest that Sheahan or Vivado turned a blind eye to the officers
in question. Therefore, we grant the motion to dismiss all individual
capacity claims against Sheahan and Vivado.
Defendants also seek to dismiss individual capacity claims against
Defendant John Maul ("Maul"). In his complaint Dorsey makes mention of
filing a prison grievance and states: "The Administration is completely
ignoring me," In his answer brief Dorsey further elucidates that Maul "is
in charg [sic] of Div 11 and he does nothng [sic] to help inmate
complaints. My grievance was never answer [sic] by John Maul." Defendants
have indicated that Dorsey has failed to properly pursue the
administrative grievance process which Dorsey does not dispute. Thus, it
is Dorsey that is to blame if the grievance is not proceeding
satisfactorily. Also, in regards to the ultimate disposition of the
grievance or the time elapsed since the grievance was filed there is no
indication by Dorsey that Maul did anything inappropriate. Merely,
complaining about the lack of success on a grievance is not sufficient to
state a claim against Maul, Therefore, we grant the motion to dismiss the
individual capacity claim against Maul. We also dismiss all claims
pertaining to Dorsey's medical care because there is no indication that
any of the listed defendants had any personal responsibility relating to
Dorsey's medical care.
B. Qualified Immunity
Defendants also argue that the individual capacity claim against Maul,
Vivado, and Sheahan are barred because they are entitled to qualified
immunity. Government officials are
protected by qualified immunity when they perform discretionary functions
as long as they do not violate "clearly established statutory or
constitutional rights of which a reasonable person would have known." See
McDonndl v. Cournia, 990 F.2d 963, 968 (7th Cir. 1993) (quoting Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982)). We agree that the individual
capacity claims may be dismissed on the basis of qualified immunity as
C. Failure to Exhaust Administrative Remedies
Defendants argue that in regards to the allegations of Brown striking
Dorsey, Dorsey failed to exhaust his administrative remedies. Pursuant to
42 U.S.C. § 1997e(a): "No action shall be brought with respect to
prison conditions under section 1983 of this title, or any other Federal
law, by a prisoner confined in any jail, prison, or other correctional
facility until such administrative remedies as are available are
exhausted." Defendants contend in regards to the allegation against Brown
that Dorsey failed to complete the available grievance process prior to
the filing of the instant suit. Dorsey has not responded to this argument
and we conclude that there is sufficient indication that Dorsey has not
exhausted his administrative remedies in regards to the Brown incident.
Defendants have not made it clear whether or not Dorsey may still exhaust
his administrative remedies and thus we grant the motion to dismiss the
claim against Brown without prejudice. The retaliation claim is a
separate matter and Plaintiffs have failed to allege that Dorsey failed
to attempt to pursue the proper grievance procedures in regards to the
D. Failure to State a Retaliation Claim
Defendants argue that Dorsey has failed to slate a claim for
retaliation because he has not alleged a chronology of events from which
retaliation can be inferred. The Seventh Circuit has recognized that an
inmate may file a retaliation claim based upon attempts to hinder a
prison grievance. See Walker v. Thompson, 288 F.3d 1005, 1009 (7th Cir.
2002)(stating that the filing of a grievance may be "constitutionally
protected speech" because it is "protected by the speech or petition
clauses of the First Amendment" or hinders an inmate's "right of access
to the courts"); DeWalt v. Carter, 224 F.3d 607, 618 (7th Cir.
2000)(stating that "a prison official may not retaliate against a
prisoner because that prisoner filed a grievance"); Babcock v. White,
102 F.3d 267, 275 (7th Cir. 1996)(indicating that actions in retaliation
for plaintiffs use of the inmate grievance system could violate his First
Dorsey also alleges that Krauskopf threatened Dorsey with retaliation
if he filed a Section 1983 claim. An inmate states a proper Section 1983
claim if he alleges that the prison actors acted against him in
retaliation for the inmate "exercising his free speech rights" and it
"chilled his ability to file lawsuits against prison officials and to
file grievances within the prison system." See Walker v. Bertrand, 2002
WL 1429433, at *2 (7th Cir. 2002). In order to establish a claim of
"retaliation for exercising free speech, an inmate must allege a
chronology of events from which retaliation can be inferred and show that
retaliation was a motivating factor for the defendants' conduct." Id. A
threat of retaliation that prevents an inmate from exercising his First
Amendment Constitutional rights can be sufficient for a Section 1983
retaliation claim. Thomas v. Hill, 963 F. Supp. 753, 756 (N.D. Ind.
1997)(acknowledging that an oral threat can be sufficient).
In his complaint Dorsey explicitly states that Krauskopf threatened to
frame Dorsey for fighting with a guard if Dorsey filed a grievance or
civil complaint relating to the Brown incident. Dorsey has since filed a
Section 1983 claim and a prison grievance, but he fails to allege that
Krauskopf followed through with his threat, Nor are there allegations by
Dorsey that any false charges have been brought against him or that any
other adverse actions were taken against him by Defendants after he filed
the grievance and civil complaint. Dorsey cannot argue that the threats
created a chilling effect and hindered his access to the courts or the
prison complaint review system because he filed an action in this court
and a grievance in prison. Therefore, we grant Defendants' motion to
dismiss the retaliation claim against Krauskopf.
Based on the foregoing analysis grant the motion to dismiss the
official capacity claims against all Defendants. We also grant the motion
to dismiss the individual capacity claims against Sheahan, Vivado, Maul,
and Krauskopf. We grant the motion to dismiss the individual capacity
claim against Brown without prejudice. We dismiss all claims pertaining
to the alleged indifference to Dorsey's medical condition.
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