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DUNCAN v. BAIRD

October 12, 2004.

PATRICK DUNCAN, Plaintiff,
v.
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).

  BACKGROUND

  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 rights.

  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 ...


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