United States District Court, S.D. Illinois
October 19, 2005.
GWENN HALE, Plaintiff,
J. WILSON, LT. HODGES, C/O STRAFFORD, LT. BAYLOR, LT. BARRON, MAJOR BICE, L. TEVERBAUM, COUNSELOR WATSON, and C/O THOMASON, Defendants.
The opinion of the court was delivered by: MICHAEL REAGAN, District Judge
MEMORANDUM AND ORDER
Plaintiff, a former inmate in the Lawrence 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 has tendered his
initial partial filing fee as ordered.
To facilitate the orderly management of future proceedings in
this case, and in accordance with the objectives of Federal Rules
of Civil Procedure 8(f) and 10(b), the Court finds it appropriate
to break the claims in plaintiff's pro se complaint and other
pleadings into numbered counts, as shown below. The parties and
the Court will use these designations in all future pleadings and
orders, unless otherwise directed by a judicial officer of this
Court. The designation of these counts does not constitute an
opinion as to their merit.
COUNT 1: Against defendants Barron, Baylor, and
Bice for failure to protect Plaintiff from assault by
another inmate, in violation of the Eighth Amendment.
COUNT 2: Against defendants Wilson, Hodges,
Stafford, Teverbaum, Watson, and Thomason for
unconstitutional retaliation against Plaintiff for
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
(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 that no
portion of this complaint may be dismissed at this point in the
In his complaint and "more definite statement" (Doc. 9)
Plaintiff states that he was assigned a new cellmate in October
2003. Plaintiff believed that the new cellmate, Henderson,
intended him harm. Plaintiff states that he informed "multiple"
staff members at Lawrence Correctional Center of his fear of harm
at the hands of Henderson, but staff "continuously remained
aloof, belligerent, and scornful of the Plaintiff's requests to
be celled away from Henderson." On November 1, 2003, Defendants
Barron and Baylor put Henderson in segregation (it is not clear
whether or not the placement was a result of Plaintiff's
complaints) but he was brought back after only fifteen minutes.
On November 6, 2003, Henderson assaulted Plaintiff. Plaintiff
states that Defendants Baylor, Barron, and Bice knew of
Plaintiff's complaints about Henderson, but did nothing to
prevent the assault.
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).
Based on these standards, Plaintiff's claim that Defendants
failed to protect him from assault by inmate Henderson cannot be
dismissed at this point in the litigation. See
28 U.S.C. § 1915A.
The rest of Plaintiff's allegations are somewhat difficult to
decipher. Plaintiff states that after the assault, a number of
negative actions were taken against him. In his "more definite
statement" he indicates that he believed the various actions were
taken against him in retaliation for complaining about the
incident. Plaintiff states that after the assault, Defendants
Hodges and Stafford refused to separate Henderson and Plaintiff,
rendering Plaintiff fearful of another attack and leaving
Henderson "in charge of Plaintiff's food, causing great abuse and
horror" to the Plaintiff. Plaintiff also states that Nurse Parker
(not a defendant) refused Plaintiff any treatment for his
injuries, but that later Nurse Dickerson and Dr. Gonzales (not
defendants) found evidence of "swelling" and reported that
Plaintiff was in "obvious pain."
Plaintiff states that he was interviewed by Internal Affairs
staff, but that no records of the assault were ever made by
Defendants Henson (not a defendant), Thomson, Wilson, or Hodges.
Internal Affairs did not secure medical evidence regarding the
attack. Plaintiff states that after his complaints and grievances
regarding the assault, other staff, "harassed, goaded, and
threatened Plaintiff to the point that Plaintiff believed
himself, his safety, and that of his family hopeless." Plaintiff
states that from November 18, 2003, until his transfer in March
2004, he was abused by staff in the following ways. C/O Wolfe
(not a defendant) struck him in the lower back. Defendants
Teverbaum and Watson refused to let him contact his family by
telephone, even after he received word that his brother was
missing. Other defendants (not named) tampered with and altered
his mail. Defendant Thomason harassed Plaintiff by telling him
that he was pretending to be injured and by threatening him when
he could not "keep up with the line" because of his injuries.
Plaintiff states he was interviewed three times by Internal
Affairs about the attack and was "ridiculed" by them and
eventually had a "retaliatory disciplinary report" brought
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.
Based on these standards and Plaintiff's allegations, this
claim may not be dismissed at this point in the litigation. See
28 U.S.C. § 1915A. SUMMARY AND CONCLUSION
Plaintiff is allowed to proceed against Defendants Barron,
Baylor, and Bice, on Count 1 and Defendants Wilson, Hodges,
Stafford, Teverbaum, Watson, and Thomason on Count 2.
IT IS HEREBY ORDERED that Plaintiff shall complete and submit
a USM-285 form for defendants BAYLOR, BARRON, BICE, WILSON,
HODGES, STAFFORD, TEVERBAUM, WATSON, and THOMASON within THIRTY
(30) DAYS of the date of entry of this Memorandum and Order. The
Clerk is DIRECTED to send Plaintiff 9 USM-285 forms with
Plaintiff's copy of this Memorandum and Order. Plaintiff is
advised that service will not be made on a defendant until
Plaintiff submits a properly completed USM-285 form for that
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 BAYLOR, BARRON, BICE,
WILSON, HODGES, STAFFORD, TEVERBAUM, WATSON, and THOMASON. 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 BAYLOR, BARRON, BICE, WILSON, HODGES, STAFFORD,
TEVERBAUM, WATSON, and THOMASON 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. Service shall not be made on the
Unknown (John Doe) Defendants until such time as Plaintiff has
identified them by name on a USM-285 form and in a properly filed amended complaint. Plaintiff is ADVISED that it
is Plaintiff's responsibility to provide the Court with the names
and service addresses for these individuals.
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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