Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Tate v. McCann

January 26, 2010


The opinion of the court was delivered by: Judge Robert M. Dow, Jr.


Plaintiff, Carl Tate ("Tate"), filed this civil rights lawsuit on October 3, 2008, and subsequently filed an amended complaint [1, 48]. Before the Court is a motion to dismiss that amended complaint [58], filed by Roger E. Walker ("Walker"), Terry McCann ("McCann"), Karen Rabideau ("Rabideau"), Ronald Meek ("Meek"), and Venita Wright ("Wright") (collectively "Defendants," although the amended complaint names other defendants who are not parties to the instant motion). Defendants contend (i) that as to Tate's federal civil rights claims, the complaint does not sufficiently allege the personal involvement of Defendants in bringing about Tate's constitutional deprivations and (ii) that if the Court dismisses the federal civil rights claims, then the single state law claim should be dismissed as well. The Court has federal question subject-matter jurisdiction over the federal civil rights claims (28 U.S.C. § 1331; id. § 1343(a)(3)) and supplemental jurisdiction over the Illinois state law claim (28 U.S.C. § 1367(a)).

For the reasons set forth below, Defendants' motion to dismiss [58] is denied.

I. Background

According to Tate, whose well-pleaded factual allegations the Court accepts as true at the motion to dismiss phase (Barnes v. Briley, 420 F.3d 673, 677 (7th Cir. 2005)), Tate is an inmate housed at the Pinckneyville Correctional Center. Tate was housed at the Stateville Correctional Center ("Stateville") during the events giving rise to this lawsuit. Compl. ¶ 5.*fn1 McCann was the Warden of Stateville. Id. ¶ 6. Walker was the Director of the Illinois Department of Corrections. Id. ¶ 7. Meek was the Deputy Director of District 4 of the Illinois Department of Corrections. Id. ¶ 8. Rabideau was a placement officer at Stateville who approved all of Tate's cell assignments. Id. ¶ 12. Wright was the Acting Health Care Administrator at Stateville. Id. ¶ 14. Four other defendants are named in the complaint but are not parties to the instant motion to dismiss: Dr. Ghosh was one of the treating physicians at Stateville. Id. ¶ 13. Officer Leslie Turner, Sergeant Baldwin, and Lieutenant Buczkowski were officers at Stateville. Id. ¶¶ 9-11.

For a time at least, Tate was a member of a gang called the "Conservative Vice Lords" (the "CVL gang"). But in 1998, Tate was convicted of killing another CVL gang member-a member who outranked Tate. The result was an immediate death sentence that could be carried out by any member of the CVL gang, in addition to the punishment doled out by Illinois' criminal justice system. Compl. ¶ 21. The Illinois Department of Corrections was aware of the threat: Tate's file shows that he was "flagged" by Internal Affairs as someone who should not be housed with members of the CVL gang. Id. ¶ 22. And in 2003, Tate was moved to a different facility because of the threat posed by CVL gang members housed at Stateville. Id. ¶ 23.

But in 2006, the Illinois Department of Corrections sent Tate back to Stateville, a move which provoked a nearly immediate request by Tate (to Walker, the Illinois Department of Corrections Director) to be sent to another facility. Compl. ¶¶ 24-25. Tate told Walker that his life would be in danger unless he was moved to a different facility, but Walker did not respond. Id. ¶ 25.

According to Tate, officials did more than merely not respond. Tate says that although "he was supposed to be in protective custody," he instead was placed in the general population where there were many members of the CVL gang. Compl. ¶ 28. And in October 2006, Tate was assigned to share a cell with a CVL gang member, Toussaint Daniels. Tate responded immediately by informing Sergeant Baldwin and Lieutenant Buczkowski (again, neither one is a party to the motion to dismiss) that Tate was classified as being in protective custody and that Toussaint Daniels had threatened him. The officers told Tate that he should "stop snitching" and learn how to fight. Id. ¶¶ 30-31.

On roughly October 11, 2006, "just as he warned various prison officials" of the danger to his safety by writing emergency grievances and letters in an attempt to be moved away from Toussaint Daniels, Tate was assaulted by Daniels and suffered "several serious physical injuries." Compl. ¶¶ 32-33. After that encounter, Tate was assigned a new cellmate, Matthew Foley, an Aryan Brotherhood gang member. Id. ¶¶ 34, 40, 53. (The assignment was made even though Tate is African-American. See id. ¶ 5.) In late November and into December 2006, Tate filed grievances and also informed Sergeant Buczkowski that Matthew Foley was threatening him; the latter's response (again) was to tell Tate that Tate should stop snitching and "should fight like a man." Id. ¶¶ 37-38. Also in December, Tate wrote to Walker, renewing his request for a transfer or to be put in a protected cell-the letter said that Matthew Foley was threatening his life and that the officers at the facility (Turner, Baldwin, and Buczkowski) were ignoring the danger and refusing to help him. Id. ¶ 39.

On December 27, 2006, Tate spoke to Turner, an officer with Internal Affairs, again warning of the risk that Matthew Foley posed and elucidating the reasons for his concerns, including that Foley's fellow Aryan Brotherhood gang members were yelling through the gallery that Foley should kill him. Tate was told not only to "stop being a coward," he was told to stop complaining, and Turner took no steps to investigate the danger posed by Foley. Compl. ¶¶ 40-43. That same day, Tate was brutally assaulted by Matthew Foley. During the assault, Tate was knocked unconscious and had his property stolen. Id. ¶ 44. Foley subsequently admitted during an interview that he had assaulted Tate. Id. ¶ 45-46. Although Foley was moved out of the cell, Turner refused to document evidence of Tate's injuries. Tate filed another grievance after this series of events occurred (the complaint does not say whether the grievance related to the attack by Foley, the response by Turner, or both). Id. ¶¶ 47-79.

January 2007 found Tate writing to Meek for help. Meek was the Deputy Director of the Illinois Department of Corrections. Tate's effort to get into protective custody had been granted, but Tate was placed into a protective custody cell with another Aryan Brotherhood gang member. Compl. ¶¶ 50-53. This other gang member, John Malinowski, was widely known as both a member of the Aryan Brotherhood and as a close friend of Matthew Foley. Id. ¶¶ 53-54. The same day that Tate was placed with Malinowski, Tate was assaulted by Malinowski. This led Tate to file another grievance, and no effort was made to separate Tate and Malinowski while the grievance was investigated. Apparently as part of that investigation, Malinowski met with Officer Turner. Malinowski requested a one-man cell and told Turner that he (Malinowski) would "beat, rape, or otherwise harm Plaintiff Tate or anyone else housed with him until he was celled alone." Id. ¶ 55-57. Malinowski repeated the threat to other officers. Id. ¶ 58. Still, Malinowski and Tate were not separated and Tate-seemingly falsely, although the complaint is not entirely clear-reported to prison officials that Malinowski made good on his threat and raped Tate. Id. ¶¶ 59-60. Turner still refused to move Malinowski. Id. ¶¶ 61-62. What is more, Turner, irked by Tate's grievances and letters to the governor, told Tate that he would "personally fight to have Mr. Tate's further requests for protective custody and transfer 'shut down.'" Id. ¶ 63.

Tate also alleges that he was denied medical care during the time period in which the assaults took place. After he was assaulted by Toussaint Daniels in October 2006, Tate filed a request to see the prison doctor for treatment of his injuries. Although Tate filed multiple such requests, he received no response (and no examination) during October, November, and December 2006. Tate was not examined until more than a week after the Foley assault in January 2007. Compl. ¶¶ 65-75. Dr. Ghosh, the Stateville Medical Director and a named defendant who is not a party to the instant motion to dismiss, was aware of Tate's requests for medical treatment but ignored the requests. Id. ¶ 89. Vanessa Wright, the Acting Health Care Administrator who also received word that Tate's injuries were left untreated, also ignored Tate's requests for medical attention. Id.

Tate's complaint comprises nine counts, the first five of which allege Eighth Amendment violations. Count I names McCann, Baldwin, Buczkowski, Walker, and Rabideau. Count I alleges that Rabideau acted with deliberate indifference when she placed Tate into the cell with Toussaint Daniels, the CVL gang member, and that Walker and the other named Defendants acted with deliberate indifference in ignoring Tate's "repeated entreaties" to address the assignment. Counts II and III name the same Defendants and make essentially the same allegations with respect to Matthew Foley and John Malinowski. Count IV names Wright and Ghosh, the latter of whom is not a party to the instant motion to dismiss, and alleges that the two were deliberately indifferent to Tate's medical needs when they ignored his requests for medical assistance. Count V names McCann and Walker and alleges that their assignment policies placed Tate and "certain [other] protective-custody inmates * * * in unreasonably dangerous conditions" because the policy placed protective-custody inmates in the general prison population. The dangerous conditions "caused [Tate] to forgo his constitutionally protected right to basic human needs, and to suffer emotional distress." Count VI alleges that McCann, Turner, Baldwin, Buczkowski, and Walker violated the Due Process Clause of the Fourteenth Amendment to the United States Constitution when they failed to respond to multiple requests for assistances and to Tate's grievances. Count VII names only Turner, and alleges that ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.