United States District Court, N.D. Illinois, Eastern Division
October 12, 2004.
PATRICK DUNCAN, Plaintiff,
CALLIE BAIRD, ET AL.,[fn1] Defendants.
The opinion of the court was delivered by: AMY J. ST. EVE, District Judge
*fn1 Plaintiff's complaint names the Director of Cook County
Department of Corrections as a defendant. Because Callie Baird is
the current director of the department, this court substitutes
Baird in place of Director.
MEMORANDUM OPINION AND ORDER
Plaintiff Daryl Duncan, currently a pre-trial detainee at the
Cook County Department of Corrections, brought this pro se
civil rights action pursuant to 42 U.S.C. § 1983, claiming that
Defendants, employees of the Cook County Department of
Corrections, violated his constitutional rights by retaliating
against him after he filed various grievances. Plaintiff claims
that Defendants verbally harassed him, filed disciplinary reports
against him, and placed him in solitary confinement. He further
claims that corrections officers refused to deliver his mail and
confiscated several of his stamped envelopes. In addition,
Plaintiff alleges that corrections officers ignored his doctor's
orders regarding his physical limitations.
Defendants have moved to dismiss the complaint. Plaintiff
failed to file a response to Defendants' motion and therefore, as
the Court previously indicated, it will rule without the benefit
of Plaintiff's views. Additionally, because Plaintiff failed to
supply necessary additional information to effectuate service on Defendants Tubemvoll and
Lopez, the Court dismisses these unserved Defendants from the
case. For the reasons stated in this order, Defendants' motion to
dismiss the complaint is granted.
STANDARD OF REVIEW
In considering Rule 12(b)(6) motions to dismiss, the court must
accept as true all well-pleaded facts and must draw all
reasonable inferences from those allegations in plaintiff's
favor; a complaint shall only be dismissed if it is beyond doubt
that the plaintiff can prove no facts which would entitle him to
relief. MCM Partners, Inc. v. Andrews-Bartlett & Assoc., Inc.,
62 F.3d 967, 972 (7th Cir. 1995). Furthermore, when
confronted with a pro se complaint, the court must employ a
more liberal standard of review than it would apply where an
attorney prepared the complaint. Haines v. Kerner, 404 U.S. 519
(1972); Whitford v. Boglino, 63 F.3d 527, 535 (7th Cir.
1995). Despite this liberal review of pleadings, federal rules
still require that the complaint allege facts which would provide
an adequate basis for each claim. Gray v. Dane County,
854 F.2d 179, 182 (7th Cir. 1988). On a motion to dismiss, a
plaintiff's well-pleaded allegations of fact are taken as true
and all reasonable inferences are drawn in the plaintiff's favor.
Leatherman v. Tarrant County Narcotics Intelligence and
Coordination Units, 507 U.S. 163 (1993); Swofford v. Mandrell,
969 F.2d 547, 549 (7th Cir. 1992).
Reading Plaintiff's complaint and accompanying pleadings in the
light most favorable to him, the Court takes the following facts
as true, for the purpose of this motion to dismiss:
Plaintiff states that Officer Lopez threatened to put a "hit"
out on him and have other detainees beat him up, even offering to
pay the detainees to do so. Officer Perez threatened to offer money or drugs to other detainees to kill Plaintiff, and
Sergeant Ferris*fn2 and Captain Milka (not a named
defendant) told Plaintiff that his complaints would never reach
Director Baird. He claims that these threats have caused him
"psychological oppression." Plaintiff fails, however, to link
each of these threats to any specific grievances he filed.
Instead, it appears that Plaintiff alleges these threats outside
of the context of his retaliation claim. In fact, he mentions
that Defendants tried to get another person a social worker
to write a "phoney" grievance against Plaintiff, but this effort
failed. Plaintiff claims no further injury from these threats.
Plaintiff also alleges that Officer Tubemvoll and Sergeant
Officer Hernandez ignored his complaints that corrections
officers were not accepting mail that he wished to send. In
addition, he maintains that corrections officers ignored orders
from his doctor that Plaintiff should not go up and down stairs
or lift heavy objects. Finally, he contends that ten stamped
envelopes were taken from his cell.
In a subsequent ex parte letter sent to the Court, Plaintiff
again alleges that various Defendants have offered money to other
detainees to hurt him. He claims that he has been threatened for
writing grievances and letters to a number of different parties,
including a Chicago Sun Times reporter, Governor Rod
Blagojevich, the Justice Department, and the Attorney
Registration and Disciplinary Commission. In the letter he states
that he has been placed in segregation and kicked out of a drug
program because he asked an attorney to speak with department
staff. He fails to state which Defendant was responsible for
this, or even whether any Defendant was involved. He also states
that he has not been given stamps or envelopes for legal mail, he has been turned away from the law
library, and he has been denied telephone calls.
Defendants have moved to dismiss the complaint for failure to
state a claim. Defendants first argue that Plaintiff's
allegations of verbal abuse do not state a claim because claims
of emotional or mental distress are not cognizable without a
showing of some physical injury. Defendants further argue that
Plaintiff has an adequate state law remedy regarding confiscation
of his personal property, because he may file claims with the
Illinois Court of Claims to obtain relief. Defendants also
maintain that they are entitled to qualified immunity because
Plaintiff has failed to state a violation of his constitutional
Defendants further argue that Plaintiff has failed to state
valid claims against Defendants Baird, Ferris and Hernandez in
either their individual or official capacities. Defendants
additionally contend that Plaintiff's claims are time-barred
because he does not state the dates on which any of the events at
issue occurred, and that he has failed to exhaust all
administrative remedies, by not including the relevant dates to
support his compliance with the established jail grievance
procedure. Finally, Defendants assert that Plaintiff has failed
to properly serve several named Defendants, due to insufficient
information provided by Plaintiff, and, therefore, the Court
should dismiss them from the complaint.*fn3 ANALYSIS
I. Exhaustion of Administrative Remedies
According to 42 U.S.C. § 1997e(a), "[n]o action shall be
brought with respect to prison conditions under section 1983 of
this title . . . by a prisoner . . . until such administrative
remedies as are available are exhausted." 42 U.S.C. § 1997e(a);
see Porter v. Nussle, 536 U.S. 516 (2002); Massey v. Helman,
259 F.3d 641 (7th Cir. 2001); Johnson v. Litscher,
260 F.3d 826 (7th Cir. 2001). Plaintiff alleges that he did exhaust
available administrative remedies. He claims that he has written
grievances and spoken to different sergeants about his
complaints. Defendants contend that Plaintiff has not established
compliance with the jail's established grievance procedure
because he did not provide the dates on which he filed grievances
and the dates on which he appealed unsatisfactory decisions.
The Court may dismiss a complaint for failure to exhaust
administrative remedies if the failure to exhaust is so clear
from the face of the complaint that its filing is "frivolous."
Walker v. Thompson, 288 F.3d 1005, 1011-12 (7th Cir. 2002).
Failure to exhaust is normally an affirmative defense that the
defendant has the burden of pleading and proving. See Massey,
196 F.3d at 735 (internal citations omitted). At this stage of
the proceedings, Plaintiff need only plead that he has complied
with the jail's internal grievance procedure. MCM Partners,
62 F.3d at 972. Plaintiff has made such an allegation, and the Court
must accept this allegation as true. Because at this stage of the
litigation there is no evidence before the Court to clarify the
exhaustion issue, the Court cannot conclude that Plaintiff has
failed to exhaust his claims.
II. Statute of Limitations
Defendants correctly argue that time limits applicable to §
1983 actions are governed by state law, and that the applicable Illinois statute sets a
two-year time limit for filing such a complaint. See Henderson
v. Bolanda, 253 F.3d 928, 931 (7th Cir. 2001). Statute of
limitations defenses, however, are frequently inappropriate for
resolution on a motion to dismiss because their application often
depends upon factual determinations. Johnson Controls, Inc. v.
Exide Corp., 129 F. Supp. 2d 1137, 1142 (N.D. Ill. 2001). If a
plaintiff alleges facts that show that his action is time-barred,
however, he may plead himself out of court. Id. All reasonable
inferences must be drawn in plaintiffs' favor when a defendant
seeks a dismissal because the claim is time-barred. Cornfield by
Lewis v. Consolidated High Sch. Dist. No. 230, 991 F.2d 1316,
1324 (7th Cir. 1993). Although Plaintiff has not stated the
dates on which any of the incidents in question occurred, the
Court cannot conclude as a matter of law at this stage that his
claims are time-barred.
III. Psychological Oppression Claim
Defendants assert that Plaintiff's claim of "psychological
oppression" does not state a cognizable constitutional violation,
absent an allegation of some accompanying physical injury. See
42 U.S.C. § 1997e(e); Zehner v. Trigg, 133 F.3d 459, 461
(7th Cir. 1997). Plaintiff has not claimed that he has
suffered any physical injury as a result of Defendants' threats
or other actions. Plaintiff's complaint, however, is based on
Defendants' retaliation against him for the exercise of his First
Amendment rights. Such a claim does not require an allegation of
physical injury. See Calhoun v. DeTella, 319 F.3d 936, 940
(7th Cir. 2003) (deprivation of the First Amendment right is
itself a cognizable injury, regardless of any resulting mental or
emotional injury) (internal citations omitted). IV. Retaliation Claim
It is well-established that "otherwise permissible conduct can
become impermissible when done for retaliatory reasons."
Zimmerman v. Tribble, 226 F.3d 568, 573 (7th Cir. 2000).
These fundamental rights include an inmate's First Amendment
right to file grievances. See DeWalt v. Carter, 224 F.3d 607,
618 (7th Cir. 2000). In a retaliation claim, it is not a
defendant's action alone that leads to a constitutional
violation. Rather, it is the retaliatory motive behind the
action. See Babcock v. White, 102 F.3d 267, 275 (7th Cir.
2000) (retaliation claim may exist even if defendant's actions do
not independently violate the Constitution) (internal citations
Thus, to the extent that Plaintiff claims that Defendants
retaliated against him for filing grievances, his First Amendment
rights are implicated. Babcock, 102 F.3d at 275. See also
DeWalt, 224 F.3d at 618. All that a plaintiff must specify in a
retaliation complaint is the bare minimum of facts necessary to
put a defendant on notice of the claim so that an answer may be
filed. Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002),
citing Beanstalk Group, Inc. v. AM General Corp., 283 F.3d 856,
863 (7th Cir. 2002). This generally requires that a plaintiff
identify his own protected conduct with some specificity, as well
as the act of retaliation by jail officials. Id. (internal
Plaintiff alleges generally that certain Defendants retaliated
against him by threatening to file disciplinary reports against
him, and by threatening to pay other detainees to beat up or even
kill him. No further retaliatory action is alleged or described.
A plaintiff's allegations of verbal abuse and threats, as well as
threatening gestures and conduct by correctional officers and
officials, without a retaliatory component, are insufficient
grounds for relief under § 1983. See DeWalt, 224 F.3d at 612; Oltarzewski v. Ruggiero,
830 F.2d 136, 139 (9th Cir. 1987) (verbal threats or abuse do not rise
to the level of constitutional violations cognizable under §
1983); Martin v. Sargent, 780 F.2d 1334, 1338 (8th Cir.
1985) (allegations of verbal threats and name calling do not
amount to constitutional violations actionable under § 1983);
McFadden v. Lucas, 713 F.2d 143, 147 (5th Cir. 1983)
(prisoner confronted with 22 officers armed with sticks and
acting in threatening manner did not, absent physical abuse,
state a constitutional violation); Collins v. Cundy,
603 F.2d 825 (10th Cir. 1979) (allegation that Sheriff threatened to
hang prisoner does not state a claim under § 1983). On the other
hand, if Defendants, engaged in otherwise permissible conduct in
order to retaliate against Plaintiff for exercising his First
Amendment rights, he could state a claim for relief. See, e.g.
Zimmerman, 226 F.3d at 573.
Plaintiff alleges that Captain Milka not a named Defendant
placed him in solitary confinement after he filed various
grievances. Because he did not sue the Captain, this claim is not
included in the case. Without specifically giving names, he
further states that certain Defendants wrote false complaints
about him in response to his grievances, but he never gives any
further information related to this claim. The only related
allegation Plaintiff makes is that Defendants tried
unsuccessfully to have a social worker write up a "phoney" report
Further, Plaintiff's complaint fails to identify any specific
exercise of his constitutional rights that led to any punitive
action by Defendants. Even under the liberal pleading standards
afforded pro se plaintiffs, a plaintiff still must identify the
protected conduct leading to defendants' retaliation. See
Walker, 288 F.3d at 1011-12 (plaintiff must state at least the
grievance or suit leading to the retaliation and the acts
constituting retaliatory conduct); Higgs, 286 F.3d at 439
(plaintiff must specify both his own protected conduct and the
acts claimed to be taken in retaliation to allow defendants to properly respond
to complaint). Because Plaintiff has made only vague references
to grievances he has filed, without specifying which grievance
was the basis for the retaliation, what the retaliation was, or
even identifying which Defendant retaliated, he has failed to
state a claim for relief on the retaliation claim. Plaintiffs
remaining claim that Defendants threatened him, without more,
V. Interference with Plaintiff's Mail
Plaintiff alleges that certain Defendants interfered with his
attempts to send mail, and that ten stamped envelopes were taken
from him. Detainees have First Amendment rights to send and
receive mail. See Rowe v. Shake, 196 F.3d 778, 782 (7th
Cir. 1999). Mere allegations of temporary disruptions in sending
out inmates' mail generally do not support a cause of action
grounded upon the First Amendment. See id. Plaintiff has not
pled that Defendants continuously and regularly interfered with
his ability to send mail outside of the jail. Castillo v. Cook
County Mail Room Dept., 990 F.2d 304, 306 (7th Cir. 1993).
Additionally, interference with the transmission of Plaintiff's
legal mail violates that right only if it is deliberate and
impedes access to the courts. See Kinkaid v. Wail,
969 F.2d 594, 602 (7th Cir. 1992); Gentry v. Duckworth, 65 F.3d 555,
558 (7th Cir. 1995). Plaintiff does not allege that any legal
mail was involved. Plaintiff, therefore, has not alleged a
deprivation of any constitutional right with respect to
Defendants' alleged failure to send his mail.
Finally, Plaintiff alleges that Defendants took several stamped
envelopes from him. Intentional deprivations of inmates' property
do not violate the due process clause if adequate state
post-deprivation remedies are available. See Hudson v. Palmer,
468 U.S. 517, 533 (1984). Plaintiff has an adequate state law
remedy he may file a tort suit in the Illinois Court of Claims. Stewart v. McGinnis, 5 F.3d 1031, 1035-36 (7th Cir.
1993). Because of this available state law remedy, Plaintiff has
failed to state a claim for property deprivation.
VI. Denial of Medical Care
Plaintiff alleges that Defendants ignored his doctor's orders,
which restrict him from using the stairs or lifting heavy
objects. He also states that Defendants have said that they do
not care if he is disabled. He does not claim that he has
suffered any injury due to Defendants' actions.
In order to establish a claim of inadequate medical care, a
plaintiff must show that he suffers from a serious medical
condition, and that defendants were deliberately indifferent to
the condition. See Gutierrez v. Peters, 111 F.3d 1364, 1375
(7th Cir. 1997). Deliberate indifference has both an
objective and a subjective element: the inmate must have an
objectively serious medical condition, and the health care
provider must be subjectively aware of and consciously disregard
a risk to the inmate's health or safety. Farmer v. Brennan,
511 U.S. 825, 837 (1994); Sherrod v. Lingle, 223 F.3d 605, 610
(7th Cir. 2000). In the instant case, Plaintiff has not
specifically stated what type of injury or condition he suffers
from, only that he is disabled in some way. Furthermore, he has
not alleged that he has been refused medical care when requested.
He has not alleged that he suffers from a serious medical
condition, nor that defendants were deliberately indifferent to
his medical needs. Thus, Plaintiff has failed to state a claim
for relief related to medical care.
VII. Official and Individual Capacity
Defendants also argue that the Court should dismiss Baird,
Ferris and Hernandez from the suit because Plaintiff has failed
to alleged any facts demonstrating their liability in either their individual or official capacities. The Court agrees.
In a § 1983 case, a supervisor cannot be held personally liable
for a constitutional deprivation unless he or she caused or
participated in the violation. See Boyce v. Moore,
314 F.3d 884, 888 (7th Cir. 2002) (internal citations omitted). The
supervisor must knowingly, willfully, or at least recklessly
cause the violation by her actions or lack thereof. Moore v.
Indiana, 999 F.2d 1125, 1129 (7th Cir. 1993) (internal
citations omitted). Even viewing the complaint in the light most
favorable to Plaintiff, he does not allege that Defendant Baird
caused or participated in any of the alleged violations.
Therefore, Baird, in her individual capacity, is dismissed from
Regarding Sergeants Ferris and Hernandez, Plaintiff claims that
he told them about various threats that Lopez and Perez made to
him, and about problems with his mail. He alleges that they
basically told him to forget about the complaints. Ferris and
Hernandez can be liable as supervisors only if the alleged
deprivations were constitutional violations and that they
occurred at their direction or with their knowledge and consent.
Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995),
cited in Zentmeyer v. Kendall County, 220 F.3d 805, 812
(7th Cir. 2000). Plaintiff's allegations are insufficient to
establish Ferris' or Hernandez' personal involvement in any
constitutional violations. Thus, Plaintiff has failed to state a
claim against these supervisory defendants.
In a § 1983 claim, in order to prevail on an official capacity
suit against government officials, a plaintiff must show that an
official custom or policy caused his injuries. See Perkins v.
Lawson, 312 F.3d 872, 875 (7th Cir. 2002) (citing City of
St. Louis v. Praprotnik, 485 U.S. 112 (1988)). Plaintiff must
point to either an express policy which caused the injury, or a "widespread practice that is so well-settled as to amount to a
policy," Id., citing Abbott v. Village of Winthrop Harbor,
205 F.3d 976 (7th Cir. 2000). Plaintiff has not pled that any
such policy or practice was in place at the jail. The Court
therefore dismisses the complaint against these Defendants in
their official capacities.
VIII. Qualified Immunity
Defendants allege that they are entitled to qualified immunity
because Plaintiff has failed to establish the violation of a
constitutional right. The defense of qualified immunity only
arises after a finding by the court that Plaintiff did allege a
violation of a constitutional right. Because the Court finds that
Plaintiff has failed to state a constitutional claim for relief,
it is not necessary to address the qualified immunity claim.
Plaintiff has not stated any constitutional claims for which he
is entitled to relief. For this reason, Defendants' motion to
dismiss is granted, and the complaint is dismissed without
prejudice. (R. 14-1.)