United States District Court, N.D. Illinois, Eastern Division
October 24, 2005.
JEFFREY E. JOHNSON, Plaintiff,
MICHAEL F. SHEAHAN, SHERIFF; ACTING DIRECTOR KURTOVICH; C. PLAXICO, SUP'T, DIVISION 6; JOHN & JANE DOES 1-20, Defendants.[fn1]
The opinion of the court was delivered by: MATTHEW KENNELLY, District Judge
*fn1 Defendant John Stroger, Jr., was dismissed from this action
in the Court's order of March 24, 2005.
MEMORANDUM OPINION AND ORDER
Plaintiff Jeffrey E. Johnson, an inmate at Dixon Correctional
Center, brings this pro se complaint pursuant to
42 U.S.C. § 1983 alleging that while he was detained at Cook County Jail, he
was not allowed to obtain a subscription to a newspaper directly
from the publisher, in alleged violation of his First Amendment
Defendants Michael Sheahan, Chester Plaxio, and Scott Kurtovich
have moved to dismiss. Johnson has filed an objection to the
motion to dismiss, a motion opposing the motion to dismiss, a
motion in opposition to the motion to dismiss, and a supplemental
motion opposing the motion to dismiss. These multiple responses
are somewhat repetitious but also contain different arguments.
Neither the Court nor the defendants should have to ferret
through four separate responses to ascertain Johnson's arguments.
In the future, Johnson may submit only one response to any motion the defendants file.
For the following reasons, the Court denies defendants' motion
When considering a motion to dismiss for failure to state a
claim, the Court accepts the plaintiff's allegations as true,
Hishon v. King & Spalding, 467 U.S. 69, 73 (1984), and
construes any ambiguities in the complaint in the plaintiff's
favor. Thompson v. Ill. Dep't of Prof. Regulation,
300 F.3d 750, 753 (7th Cir. 2002). Pro se complaints are liberally
construed "and [are] not held to the stringent standards expected
of pleadings drafted by lawyers." McCormick v. City of Chicago,
230 F.3d 319, 325 (7th Cir. 2000). The Court may grant a motion
to dismiss only if "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). A court may take judicial notice of matters of public
record without converting a 12(b)(6) motion into a motion for
summary judgment. Anderson v. Simon, 217 F.3d 472, 474-75 (7th
Cir. 2000); Henson v. CSC Credit Services, 29 F.3d 280, 284
(7th Cir. 1994).
Johnson alleges that while he was housed in Division 1 of the
Cook County Jail, he was not allowed to obtain a newspaper
subscription directly from the publisher. He filed a grievance,
to no avail. When Johnson was transferred to Division 6, he
noticed that other inmates were allowed to have foreign
newspapers. He asked to be allowed to receive U.S.A. Today, the
Wall Street Journal, Jewish Exponent, and the Christian
Science Monitor. Defendants denied his request. 2. Analysis
Defendants argue that Johnson failed to list all the lawsuits
he has filed as directed in the complaint form required by Local
Rule 81.1, which they argue requires dismissal; that at least
three of the cases Johnson filed were dismissed on grounds that
they were frivolous, malicious, or failed to state a claim, which
also requires dismissal; that he fails to state a claim against
defendants in their individual capacities; and that he fails to
state a claim against defendants in their official capacities.
a. Failure to list all lawsuits
Defendants point out that on his original complaint, Johnson
listed one action he had filed previously, Johnson v. Horn,
150 F.3d 276 (3d Cir. 1998). However, their search of cases filed in
other courts revealed thirteen cases or appeals that Johnson had
filed. In his responses, Johnson argues that did not file three
of those cases. In reply, defendants note that Johnson identified
in his responses two additional cases he had filed.
After initially reviewing the motion to dismiss and Johnson's
responses, the Court decided that it needed more information from
Johnson in order to determine how many cases he had filed. The
Court noted that the U.S Party/Case Index listed 114 matches for
prisoner cases filed by "Jeffrey Johnson." Even after eliminating
cases filed by "Jeffrey Johnsons" with middle initials other than
"E" or middle names other than "Earl," some fifty-nine cases
remained. The Court through its own research found Johnson v.
Daiwa Bank Trust Company, 96 CV 7315 (S.D.N.Y. 1996), a case
which neither Johnson nor defendants had mentioned. It also
appeared that Johnson may have filed some cases while
incarcerated in Georgia and Florida.
On July 19, 2005, the Court ordered Johnson to provide the
following information: First, plaintiff must provide all names under which
he has filed cases.
Second, plaintiff must provide the name of every
correctional institution in which he has been
incarcerated and the time period in which he was at
the institution. This includes all institutions
whether county, state, or federal.
Third, plaintiff must provide the identification
numbers under which he has been incarcerated and note
which ID goes with which institution.
Fourth, plaintiff must provide a complete list of
every case he has filed. This includes appeals.
Fifth, plaintiff must provide information as to how
much of the filing fees and costs plaintiff has paid
on cases that were filed after the effective date of
the Prison Litigation Reform Act of 1996 (April 26,
In response, Johnson stated that he has never filed cases under
any other name than his own and that he has been incarcerated in
thirty-six county, state, and federal correctional facilities in
various areas of the country since 1977. In addition to the
eleven cases Johnson had already admitted to filing, he listed
eleven more and noted that these may not be all the lawsuits he
Defendants argue that Johnson made material misrepresentations
by failing to inform or disclose to the Court a multitude of the
lawsuits he has filed. They point out that the complaint form
specifically instructs litigants:
List ALL lawsuits you (and your co-plaintiffs, if
any) have filed in any state or federal court
(including the Central and Southern Districts of
IF YOU HAVE FILED MORE THAN ONE LAWSUIT, THEN YOU
MUST DESCRIBE THE ADDITIONAL LAWSUITS ON ANOTHER
PIECE OF PAPER, USING THIS SAME FORMAT, REGARDLESS OF
HOW MANY CASES YOU HAVE PREVIOUSLY FILED, YOU WILL
NOT BE EXCUSED FROM FILLING OUT THIS SECTION
COMPLETELY, AND FAILURE TO DO SO MAY RESULT IN
DISMISSAL OF YOUR CASE. . . .
In addition, the form complaint ends with a certification,
By signing this Complaint, I certify that the facts
stated in this Complaint are true to the best of my
knowledge, information and belief. I understand that
if this certification is not correct, I may be
subject to sanctions by the Court.
Johnson signed this certification on March 1, 2005. In response,
Johnson claims that he has corrected his mishap by amending his complaint to reflect his
litigation history. He also claims that he has several serious
medical conditions which contributed to his inability to recall
all his litigation history.
The Court notes that although Johnson's original complaint
plainly did not comply with the local rule, it appears that he
has made, in his responses to the motion to dismiss, his amended
complaint, and his responses to the Court's order of July 19,
2005, every attempt to list his litigation history in full. It
also appears that much of Johnson's litigation took place in the
mid-1990's, with only a few sporadic cases after 2000. Whether
Johnson's failure to list these cases is due to the passage of
time, his current medical condition, or some other reason is less
important in the current circumstances than the fact that he he
has now complied with the Court's instructions on its form
complaint. The Court accordingly denies defendants' motion to
dismiss as to this issue particularly because the disclosure of
all Johnson's prior cases does not reveal a basis for dismissal
of the present case.
Nonetheless, Johnson is cautioned that when he signs a document
filed with the Court, he is representing that the statements he
makes are true to the best of his knowledge. See
Fed.R.Civ.P. 11. For this reason, it is imperative that Johnson review his
filings carefully before submitting them to ensure they are
complete and accurate. Misrepresentations to a court can lead to
sanctions, dismissal, or even criminal prosecution. See Sloan v.
Lesza, 181 F.3d 857, 859 (7th Cir. 1999) (plaintiff's effective
"fraud" on the court justified "immediate termination of the
suit"). Specifically, in any federal action he files in this
District the future, Johnson must include a complete list of
every case he has filed anywhere in the United States; and he
must likewise comply with the requirements of any other federal
or state court in which he files a suit. b. Three "strikes"
Defendants argue that Johnson has accumulated three "strikes,"
which precludes him from bringing an action in forma pauperis.
Under the Prison Litigation Reform Act,
[i]n no event shall a prisoner bring a civil action
or appeal a judgment in a civil action or proceeding
under this section if the prisoner has, on 3 or more
prior occasions, while incarcerated or detained in
any facility, brought an action or appeal in a court
of the United Stats that was dismissed on the grounds
that it is frivolous, malicious, or fails to state a
claim upon which relief may be granted, unless the
prisoner is under imminent danger of serious physical
28 U.S.C. § 1915(g). This provision takes into account all cases
Johnson has filed, including those he filed before the PLRA's
effective date of April 26, 1996. See Evans v. Illinois Dept. of
Corrections, 150 F.3d 810
, 811 (7th Cir. 1998); Lucien v.
Jockisch, 133 F.3d 464, 468, 469 (7th Cir. 1998); Tierney v.
Kupers, 128 F.3d 1310 (9th Cir. 1997); Adepegba v. Hammons,
103 F.3d 383
(5th Cir. 1996); Abdul-Wadood v. Nathan,
91 F.3d 1023 (7th Cir. 1996); Green v. Nottingham, 90 F.3d 415 (10th
Defendants contend that Johnson v. Ridge, 96-CV-806 (M.D. Pa.
1996) (dismissed for failure to prosecute with a ruling that any
appeal from this order would be deemed frivolous, without
probable cause and not taken in good faith); Johnson v. Vidmer,
96-CV-188 (W.D. Pa. 1996) (order granting motion to dismiss,
granting motion to dismiss for failure to state claims upon which
relief can be granted that was treated as motion for summary
judgment); and Johnson v. Vidmer, 96-3355 (3d Cir. 1996)
(appeal dismissed as moot; costs of $166.17 and $124.92 assessed
against plaintiff, but no payment reflected on docket) constitute
"strikes" for purposes of 28 U.S.C. § 1915(g).
In response, Johnson argues that none of these cases is a
strike. The Court agrees. As Johnson points out, Johnson v.
Ridge, 96-CV-806 (M.D. Pa. 1996), was dismissed for a failure to prosecute, not because the district court ruled that the action
was frivolous, malicious, or failed to state a claim. Although
the district court ruled that any appeal would be deemed
frivolous, without probable cause and not taken in good faith,
that was not the grounds on which it dismissed the case. This
case therefore does not constitute a "strike." In Johnson v.
Vidmer, 96-CV-188 (W.D. Pa. 1996), the motions to dismiss were
treated as motions for summary judgment. See Defs' Ex. D at
6-7. This case therefore does not constitute a "strike." The
third case, Johnson v. Vidmer, 96-3355 (3d Cir. 1996), the
Third Circuit dismissed Johnson's appeal as moot. Although the
court assessed costs against Johnson, that is not one of the
grounds for finding a "strike."
Failure to pay filing fees and costs in prior cases may also be
grounds for dismissing an action, as defendants argue. However,
though dockets in this District reflect installment payments in
prisoner cases, many district courts do not provide this
information on their dockets. Johnson states in his responses to
the Court's July 19 order that it "is impossible for this
plaintiff to respond to how much filing fees have been executed
since the PLRA. The Western District of Pennsylvania litigation
was fully paid as well as the appeal. Further the Habeas
petitions in Southern District of Illinois were paid for in 2003
as was the litigation in Macon, Georgia before Judge Hicks."
Without definitive evidence of nonpayment of filing fees and
costs, this is not a basis for dismissal.
Although none of the cases that defendants cited constitutes a
"strike," the Court located Johnson v. Daiwa Bank Trust
Company, 96 CV 7315 (S.D.N.Y. 1996), which Johnson now
acknowledges that he filed. This action was dismissed pursuant to
28 U.S.C. § 1915(d), and the district court certified that any
appeal from this order would not be taken in good faith. This case constitutes a "strike." But one strike is not enough under §
1915(g), and accordingly defendants are not entitled to dismissal
on this basis.
c. Individual capacity
Defendants argue that none of the named defendants can be held
liable in their individual capacity. The Seventh Circuit has
repeatedly held that "§ 1983 does not allow actions against
individuals merely for their supervisory role of others" and that
"individual liability under 42 U.S.C. § 1983 can only be based on
a finding that the defendant caused the deprivation at issue."
Palmer v. Marion County, 327 F.3d 588, 594 (7th Cir. 2003)
(citations omitted). See also Vance v. Washington, 97 F.3d 987,
991 (7th Cir. 1996); Gentry v. Duckworth, 65 F.3d 555, 561 (7th
Cir. 1995); Rascon v. Hardiman, 803 F.2d 269, 273 (7th Cir.
1986) (citing Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th
Cir. 1983)). Lawsuits against individuals require personal
involvement in the alleged constitutional deprivation to support
a viable claim. Palmer, 327 F.3d at 594. Although direct
participation is not necessary, there must at least be a showing
that an individual defendant "acquiesced in some demonstrable way
in the alleged constitutional violation." Id. That is, the
supervisor must "know about the conduct and facilitate it,
approve it, condone it, or turn a blind eye." Jones v. City of
Chicago, 856 F.2d 985, 992 (7th Cir. 1988).
Although Johnson did not address this issue in his responses to
the motion to dismiss, he submitted an amended complaint on May
26, 2005. In the amended complaint, Johnson claims that in
addition to filing grievances, he wrote each of the named
defendants in regard to not being able to subscribe to
newspapers. Because Johnson has now alleged that each of the
defendants was personally aware of and did nothing to correct the
alleged constitutional violation, they are not entitled to
dismissal on this basis. d. Official capacity
An official capacity claim is, in essence, a claim against the
governmental entity that employs the defendant. See Kentucky v.
Graham, 473 U.S. 159, 165 (1985); Chortek v. Milwaukee,
356 F.3d 740, 748 n. 4 (7th Cir. 2004). A local governmental entity
is liable for damages only if a plaintiff can show that the
alleged constitutional deprivation occurred as a result of an
official policy, custom, or practice. Monell v. Dep't of Social
Servs., 436 U.S. 658, 694 (1978); Chortek, 356 F.3d at 748.
Unconstitutional policies or customs can take three forms: an
express policy that, when enforced, causes a constitutional
deprivation; a widespread practice that, although not authorized
by written law or express municipal policy, is so permanent and
well settled as to constitute a "custom or usage" with the force
of law; or an allegation that the constitutional injury was
caused by a person with final policy-making authority. Garrison
v. Burke, 165 F.3d 565, 571-72 (7th Cir. 1999) (quotations
omitted); accord, Perkins v. Lawson, 312 F.3d 872, 875 (7th
Cir. 2002); Brokaw v. Mercer County, 235 F.3d 1000, 1013 (7th
In his amended complaint, Johnson alleges that the Sheriff's
own policy permits up to three newspapers. Whether the denial of
Johnson's subscriptions to newspapers was because of a widespread
practice or caused by a person with final policy-making authority
cannot be determined at the present stage of the case. Defendants
are not entitled to dismissal on this basis.
e. Johnson's miscellaneous motions
Johnson has moved the Court to transport him to a status
hearing so that he may testify as to defendants' motion to
dismiss. This Court has discretion to determine when an inmate
shall attend court proceedings held in connection with an action
initiated by the inmate. Stone v. Morris, 546 F.2d 730, 735 (7th Cir. 1976). A status hearing is
not the type of court proceeding necessitating the presence of
the inmate. If and when Johnson's presence is needed, the Court
will take the appropriate steps. Johnson's motion is accordingly
Johnson's motion for order compelling discovery is denied as
premature because no discovery schedule had been set at the time.
Johnson's motion opposing defendants' motion to dismiss is
construed as a response to the motion to dismiss. In the future,
in addition to not filing multiple responses to motions made by
defendants, Johnson should be aware that he need not and should
not designate his responses as motions.
For the foregoing reasons, the Court denies defendants' motion
to dismiss . Johnson is granted leave to file his amended
complaint, received by the Clerk on May 26, 2005. Defendants are
given until November 23, 2005 to respond to the amended
complaint. Johnson's motion to transport plaintiff  and
motion for order compelling discovery  are denied. Johnson's
motion opposing defendants' motion to dismiss  is terminated.
The case is set for a status hearing on December 5, 2005 at 9:30
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