United States District Court, S.D. Illinois
June 6, 2005.
JOHNNY WILLIAMS, Plaintiff,
ROGER E. WALKER, MARK PIERSON, WARDEN FLAGG, MAJOR BETTS, SUPT. COWAN, LT. ROBINSON, BRETT KLINDWORTH, C/O LAWRENCE, C/O WECE, LINDA FRITTS and COUNSELOR KELLERMAN, Defendants.
The opinion of the court was delivered by: DAVID HERNDON, District Judge
MEMORANDUM AND ORDER
Plaintiff, formerly an inmate in the Pinckneyville Correctional
Center, brings this action for deprivations of his constitutional
rights pursuant to 42 U.S.C. § 1983. Plaintiff previously was
granted leave to proceed in forma pauperis, and he was not
required to pay an initial partial filing fee. In this action,
Plaintiff complains about a series of events that occurred while
he was in the Pinckneyville Correctional Center. He presents the
Court with two pages of detailed chronology, and he then lists
eight separate claims arising from this events. Each of these
eight claims is discussed below.
This case is now before the Court for a preliminary review of
the complaint pursuant to 28 U.S.C. § 1915A, which provides:
(a) Screening. The court shall review, before
docketing, if feasible or, in any event, as soon as
practicable after docketing, a complaint in a civil
action in which a prisoner seeks redress from a
governmental entity or officer or employee of a governmental entity.
(b) Grounds for Dismissal. On review, the court
shall identify cognizable claims or dismiss the
complaint, or any portion of the complaint, if the
(1) is frivolous, malicious, or fails to state a
claim on which relief may be granted; or
(2) seeks monetary relief from a defendant who is
immune from such relief.
28 U.S.C. § 1915A. An action or claim is frivolous if "it lacks
an arguable basis either in law or in fact." Neitzke v.
Williams, 490 U.S. 319
, 325 (1989). Upon careful review of the
complaint and any supporting exhibits, the Court finds it
appropriate to exercise its authority under § 1915A; portions of
this action are legally frivolous and thus subject to summary
Plaintiff's first claim is that on April 8, 2003, Defendant
Lawrence slammed the chuck hole door on his hand, breaking his
The intentional use of excessive force by prison guards against
an inmate without penological justification constitutes cruel and
unusual punishment in violation of the Eighth Amendment and is
actionable under Section 1983. Hudson v. McMillian, 503 U.S. 1,
6-7 (1992); DeWalt v. Carter, 224 F.3d 607, 619 (7th Cir.
2000). "[W]henever prison officials stand accused of using
excessive physical force in violation of the Cruel and Unusual
Punishments Clause, the core judicial inquiry is . . . whether
force was applied in a good-faith effort to maintain or restore
discipline, or maliciously and sadistically to cause harm."
Hudson, 503 U.S. at 6-7. An inmate seeking damages for the use
of excessive force need not establish serious bodily injury to
make a claim, but not "every malevolent touch by a prison guard
gives rise to a federal cause of action. . . . [the] prohibition
of `cruel and unusual' punishment necessarily excludes from
constitutional recognition de minimis uses of physical force,
provided that the use of force is not of a sort `repugnant to the conscience of mankind.'" Id. at 9-10; see
also Outlaw v. Newkirk, 259 F.3d 833, 837-38 (7th Cir. 2001).
Applying these standards to the allegations in the complaint,
the Court is unable to dismiss this claim against Lawrence at
Plaintiff alleges that Defendant Robinson threatened and
harassed him in retaliation for Plaintiff's grievances about
Robinson. This harassment allegedly included the writing of a
false disciplinary ticket.
Prison officials may not retaliate against inmates for filing
grievances or otherwise complaining about their conditions of
confinement. See, e.g., Walker v. Thompson, 288 F.3d 1005
(7th Cir. 2002); DeWalt v. Carter, 224 F.3d 607 (7th
Cir. 2000); Babcock v. White, 102 F.3d 267 (7th Cir. 1996);
Cain v. Lane, 857 F.2d 1139 (7th Cir. 1988). Furthermore,
"[a]ll that need be specified is the bare minimum facts necessary
to put the defendant on notice of the claim so that he can file
an answer." Higgs v. Carver, 286 F.3d 437, 439 (7th Cir.
Applying these standards to the allegations in the complaint,
the Court is unable to dismiss this claim against Robinson at
In this claim, Plaintiff alleges that Defendants Fritts and
Kellerman failed to perform their duties in not properly
processing his grievances. However, "a state's inmate grievance
procedures do not give rise to a liberty interest protected by
the due process clause." Antonelli v. Sheahan, 81 F.3d 1422,
1430 (7th Cir. 1995). The Constitution requires no procedure
at all, and the failure of state prison officials to follow their
own procedures does not, of itself, violate the Constitution. Maust v. Headley, 959 F.2d 644, 648 (7th Cir. 1992);
Shango v. Jurich, 681 F.2d 1091 (7th Cir. 1982). Therefore,
this claim against Fritts and Kellerman is dismissed from this
action with prejudice.
Plaintiff next alleges that Defendant Klindworth violated his
constitutional rights by not providing a fair adjustment
committee hearing. However, the complaint does not specify when
this hearing took place, nor what the charges were, nor what the
When a plaintiff brings an action under § 1983 for procedural
due process violations, he must show that the state deprived him
of a constitutionally protected interest in "life, liberty, or
property" without due process of law. Zinermon v. Burch,
494 U.S. 113, 125 (1990). The Supreme Court has held that while a
state may create a liberty interest, such state-created liberty
interests are limited to "freedom from restraint which, while not
exceeding the sentence in such an unexpected manner as to give
rise to protection by the Due Process Clause of its own force . . .
nonetheless imposes atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life."
Sandin v. Conner, 515 U.S. 472, 483 (1995).
In this case, Plaintiff makes no allegations that he was denied
any protected liberty interest. Therefore, he has not stated a
claim upon which relief may be granted, and this claim against
Klindworth is dismissed from this action with prejudice.
Plaintiff next alleges that Defendant Wece violated his
constitutional rights by writing him a false disciplinary ticket.
However, as in Claim 4, Plaintiff makes no allegations that he
was denied any protected liberty interest. Therefore, he has not
stated a claim upon which relief may be granted, and this claim
against Wece is dismissed from this action with prejudice. CLAIM 6
In this claim, Plaintiff alleges that Defendants Pierson,
Flagg, Betts and Cowan failed to do their job, in that they
failed to prevent staff from violating Plaintiff's rights.
"The doctrine of respondeat superior does not apply to § 1983
actions; thus to be held individually liable, a defendant must be
`personally responsible for the deprivation of a constitutional
right.'" Sanville v. McCaughtry, 266 F.3d 724, 740 (7th
Cir. 2001), quoting Chavez v. Ill. State Police, 251 F.3d 612,
651 (7th Cir. 2001). See also Monell v. Department of Social
Services, 436 U.S. 658 (1978); Eades v. Thompson,
823 F.2d 1055, 1063 (7th Cir. 1987); Wolf-Lillie v. Sonquist,
699 F.2d 864, 869 (7th Cir. 1983); Duncan v. Duckworth,
644 F.2d 653, 655-56 (7th Cir. 1981).
At best, Plaintiff has alleged that Defendants were negligent
in performing their jobs, but a defendant can never be held
liable under § 1983 for negligence. Daniels v. Williams,
474 U.S. 327, 328 (1986); Zarnes v. Rhodes, 64 F.3d 285, 290
(7th Cir. 1995). Therefore, this claim against Pierson,
Flagg, Betts and Cowan is dismissed from this action with
Plaintiff next claims that Defendant Walker violated his
constitutional rights by revoking 150 days of good time credit
over a 12-month period. However, the proper method for
challenging the revocation of good time credit is habeas corpus,
but only after Plaintiff has exhausted his remedies through the
Illinois state courts. See, e.g., Heck v. Humphrey,
512 U.S. 477, 480-81 (1994); Clayton-EL v. Fisher, 96 F.3d 236, 242
(7th Cir. 1996). The Illinois courts have recognized mandamus
as an appropriate remedy to compel prison officials to award
sentence credit to a prisoner. Taylor v. Franzen,
93 Ill.App.3d 758, 417 N.E.2d 242, 247, aff'd on reh'g, 420 N.E.2d 1203 (Ill.App. 1981). See also United States ex rel. Isaac v.
Franzen, 531 F. Supp. 1086, 1091-94 (N.D. Ill. 1982). The State
of Illinois must first be afforded an opportunity, in a mandamus
action pursuant to 735 ILCS 5/14-101 et seq. to consider the
merits of Plaintiff's claim.
Therefore, this claim against Walker is dismissed from this
action with prejudice.
Plaintiff's final claim is that staff at Menard, including the
warden and his counselor, did not move him to a different cell,
despite his complaints that he was being raped by his cell mate
on a daily basis.
In Farmer v. Brennan, 511 U.S. 825 (1994), the Supreme Court
held that "prison officials have a duty . . . to protect
prisoners from violence at the hands of other prisoners." Id.
at 833 (internal citations omitted); see also Luttrell v.
Nickel, 129 F.3d 933, 935 (7th Cir. 1997). However, not
every harm caused by another inmate translates into
constitutional liability for the corrections officers responsible
for the prisoner's safety. Farmer, 511 U.S. at 834. In order
for a plaintiff to succeed on a claim for failure to protect, he
must show that he is incarcerated under conditions posing a
substantial risk of serious harm, and that the defendants acted
with "deliberate indifference" to that danger. Id.; Reed v.
McBride, 178 F.3d 849, 852 (7th Cir. 1999). A plaintiff also
must prove that prison officials were aware of a specific,
impending, and substantial threat to his safety, often by showing
that he complained to prison officials about a specific threat
to his safety. Pope v. Shafer, 86 F.3d 90, 92 (7th Cir.
1996). In other words, Defendants had to know that there was a
substantial risk that those who attacked Plaintiff would do so,
yet failed to take any action. Sanville v. McCaughtry,
266 F.3d 724, 733-34 (7th Cir. 2001).
Plaintiff does not mention any specific defendants by name in
connection with this final claim. However, in the portion of the complaint where he
identifies defendants, he refers to Pierson and Flagg as wardens,
and to Fritts and Kellerman as counselors. Therefore, at this
time, the Court and all parties will consider this claim to be
made against all four of these individuals and, based on the
standards set forth above, the Court is unable to dismiss this
claim at this point in the litigation. See 28 U.S.C. § 1915A.
IT IS HEREBY ORDERED that CLAIM 3, CLAIM 4, CLAIM 5, CLAIM
6 and CLAIM 7 are DISMISSED from this action with prejudice.
IT IS FURTHER ORDERED that Defendants BETTS, COWAN,
KLINDWORTH, WALKER and WECE are DISMISSED from this action
The Clerk is DIRECTED to prepare Form 1A (Notice of Lawsuit
and Request for Waiver of Service of Summons) and Form 1B (Waiver
of Service of Summons) for Defendants FLAGG, FRITTS, KELLERMAN,
LAWRENCE, PIERSON and ROBINSON. The Clerk shall forward those
forms, USM-285 forms submitted by Plaintiff, and sufficient
copies of the complaint to the United States Marshal for service.
The United States Marshal is DIRECTED, pursuant to Rule
4(c)(2) of the Federal Rules of Civil Procedure, to serve process
on Defendants FLAGG, FRITTS, KELLERMAN, LAWRENCE, PIERSON and
ROBINSON in the manner specified by Rule 4(d)(2) of the Federal
Rules of Civil Procedure. Process in this case shall consist of
the complaint, applicable forms 1A and 1B, and this Memorandum
and Order. For purposes of computing the passage of time under
Rule 4(d)(2), the Court and all parties will compute time as of
the date it is mailed by the Marshal, as noted on the USM-285
form. With respect to former employees of Illinois Department of
Corrections who no longer can be found at the work address
provided by Plaintiff, the Department of Corrections shall
furnish the Marshal with the Defendant's last-known address upon
issuance of a court order which states that the information shall
be used only for purposes of effectuating service (or for proof
of service, should a dispute arise) and any documentation of the
address shall be retained only by the Marshal. Address
information obtained from I.D.O.C. pursuant to this order shall
not be maintained in the court file, nor disclosed by the
The United States Marshal shall file returned waivers of
service as well as any requests for waivers of service that are
returned as undelivered as soon as they are received. If a waiver
of service is not returned by a defendant within THIRTY (30)
DAYS from the date of mailing the request for waiver, the United
States Marshal shall:
Request that the Clerk prepare a summons for that
defendant who has not yet returned a waiver of
service; the Clerk shall then prepare such summons as
Personally serve process and a copy of this Order
upon the defendant pursuant to Rule 4 of the Federal
Rules of Civil Procedure and 28 U.S.C. § 566(c).
Within ten days after personal service is effected,
the United States Marshal shall file the return of
service for the defendant, along with evidence of any
attempts to secure a waiver of service of process and
of the costs subsequently incurred in effecting
service on said defendant. Said costs shall be
enumerated on the USM-285 form and shall include the
costs incurred by the Marshal's office for
photocopying additional copies of the summons and
complaint and for preparing new USM-285 forms, if
required. Costs of service will be taxed against the
personally served defendant in accordance with the
provisions of Federal Rule of Civil Procedure 4(d)(2)
unless the defendant shows good cause for such
Plaintiff is ORDERED to serve upon defendant or, if
appearance has been entered by counsel, upon that attorney, a
copy of every further pleading or other document submitted for
consideration by this Court. He shall include with the original
paper to be filed with the Clerk of the Court a certificate stating the date that a true and correct
copy of any document was mailed to defendant or his counsel. Any
paper received by a district judge or magistrate judge which has
not been filed with the Clerk or which fails to include a
certificate of service will be disregarded by the Court.
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 Local Rule 72.1(a)(2), this cause is REFERRED to
a United States Magistrate Judge for further pre-trial
Further, this entire matter is hereby REFERRED to a United
States Magistrate Judge for disposition, as contemplated by Local
Rule 72.2(b)(2) and 28 U.S.C. § 636(c), should all the parties
consent to such a referral.
Plaintiff is under a continuing obligation to keep the Clerk
and each opposing party informed of any change in his
whereabouts. This shall be done in writing and not later than
seven (7) days after a transfer or other change in address
IT IS SO ORDERED.
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