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Corky Terry v. Nathan Maue

January 24, 2011

CORKY TERRY,
PLAINTIFF,
v.
NATHAN MAUE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: J. Phil Gilbert U.S. District Judge

#R-08315

MEMORANDUM AND ORDER GILBERT, District Judge:

Plaintiff Corky Terry, an inmate in the Menard Correctional Center, brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. 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 complaint--

(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). An action fails to state a claim upon which relief can be granted if it does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Upon careful review of the complaint and supporting exhibits, the Court finds it appropriate to exercise its authority under § 1915A; portions of this action are subject to summary dismissal.

THE COMPLAINT

Plaintiff Terry's complaint alleges that while he was in the lunch room on April 1, 2008, at about 11:45 a.m., Plaintiff made a request to Defendant Correctional Officer Nathan Maue and other John Doe Correctional Officers including Defendant John Doe Number Five to "refuse housing" and be placed in segregation due to personal issues (relating to the deaths of several of Plaintiff's family members). Instead, Plaintiff was told to go to his cell, and was followed there by Nathan Maue and other officers. Outside the cell, Plaintiff stated his refusal to enter the cell, requested again to go to segregation, and took hold of the gallery bars with his hands behind his back. Two Defendant John Doe Correctional Officers (referred to herein as John Doe One and John Doe Two) each grabbed one of Plaintiff's arms, while Defendant Nathan Maue grabbed Plaintiff by the throat, choked him and pushed him up against the bars of the gallery, causing Plaintiff to have difficulty breathing. A third Defendant John Doe Correctional Officer (referred to herein as John Doe Three) watched these actions without intervening. Plaintiff stopped resisting the officers when he felt as if he would pass out. Nathan Maue, still holding Plaintiff by the neck, then threw Plaintiff into his cell, where Plaintiff's head struck his correspondence box.

Soon after the incident, Plaintiff made a verbal request for medical assistance to an unnamed Correctional Officer, which was ignored. Plaintiff also requested to speak to Defendant John Doe Correctional Officer Five, but this Defendant never responded. Plaintiff then made a written request to Defendant Major Maue (the father of Nathan Maue) to discuss the incident, and wrote several request slips to the Health Care Unit requesting medical treatment, but received no response. Later that evening, on the second work shift, Plaintiff wrote two emergency letters to see the doctor because he was coughing up blood, having trouble breathing, and having back and neck pain. He made another written request to the Health Care Unit during the evening of April 2. Plaintiff claims that he did not receive medical treatment until approximately two weeks after the incident. He attributes this delay to a conspiracy among the correctional officers in his unit, to interfere with his outgoing mail, and faults Defendant John Doe Four (Health Care Supervisor) for not taking timely action to provide medical care.

Plaintiff further complains that the treatment ordered by the medical doctor (an x-ray) was inadequate and that he should have been given an MRI. Plaintiff does not name a particular defendant in connection with this allegation.

Also on April 1, Plaintiff sent an "emergency" written grievance via institutional mail to Defendant Jeannette Cowan (Grievance Officer) and Defendant Warden Donald A. Hulick, seeking redress for the assault on him by Defendant Nathan Maue. Plaintiff made numerous follow-up inquiries to various officials, regarding the status of his original grievance. He requested transfer to another cell house, which was denied by Defendant Kimberly Butler (Case Worker Supervisor) on April 21. He and five inmate-witnesses were interviewed by Internal Affairs (Defendant Lieutenant Ashby) in connection to the grievance, in late May or early June, 2008. This grievance was denied by Defendants Jeannette Cowan and Donald Hulick on August 14 and 15, 2008, respectively, and the final denial of this grievance by the Administrative Review Board and Defendant Roger Walker (DOC Director) came on December 29, 2008.

Plaintiff states he was the target of continued retaliatory harassment and intimidating behavior by various defendant correctional officers in the days following the April 1 incident, including Defendant Major Maue. He filed another grievance on May 20, 2008, complaining of harassment by Defendant Nathan Maue and other correctional officers, which he believed was in retaliation for his pursuit of the original grievance over the April 1 assault. The May 20 grievance includes a confrontation with Nathan Maue over Plaintiff's clothing, and with another unnamed correctional officer who addressed Plaintiff while holding a can of mace, which made him feel threatened. Plaintiff states that this grievance was never answered. In addition, Plaintiff continued to have "run-ins" with Defendant Nathan Maue between February 2009 and November 2009, for example, being arbitrarily moved to the back of the lunch line, after Plaintiff had been moved to a different cell house. Plaintiff does not claim to have filed any grievances over this alleged harassment occurring in 2009.

In reference to the original assault of April 1, 2008, Plaintiff wrote a multi-paged letter to Defendant Warden Donald A. Hulick on May 30, 2008, "expressing all that has transpired" between the incident and the date of the letter. (This letter was not attached to the complaint.) Based on the contents of this letter, Plaintiff received a disciplinary ticket on May 30, 2008, citing him for intimidation or threats, and dangerous communications. He was given six months in segregation along with other penalties. Plaintiff immediately filed a grievance challenging this disciplinary action, but it was denied by Defendants Cowan and Hulick. However, after further appeal to the Administrative Review Board, in a final ruling dated December 8, 2008, his penalties were reduced to one month of segregation and three months of reduction to C grade, yard and commissary restrictions. This reduction in penalties came after Plaintiff had already served the entire original six months of segregation, and he claims that the restriction on his physical activity and recreation aggravated his back and neck injury sustained in the April 1 assault. Plaintiff states he continues to have ongoing back and neck pain as a result of this incident.

Plaintiff Terry demands a jury trial, and requests a declaratory judgment that the Defendants' acts violated his constitutional rights, an immediate transfer to another prison (he requests to be sent both to Stateville Correctional Center and to Dixon Correctional Center); and money damages as follows: $54,000 unspecified damages against each Defendant; $117,000 in compensatory damages against all Defendants jointly and severally; punitive damages of $27,000 against each Defendant; further punitive damages against all Defendants jointly and severally of $209 for each excess day Plaintiff spent in segregation; mental damages of $1,500 against all Defendants jointly and severally; and costs.

DISCUSSION

Based on the allegations of the complaint, the Court finds it convenient to divide the pro se action into five (5) counts. 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.

As a preliminary note, all of the John Doe defendants must be dismissed from this action, because the statute of limitations on each count of the complaint has now expired. The claim of excessive force arose on April 1, 2008, and Plaintiff exhausted his administrative remedies on December 29, 2008. The retaliation claim arose on May 30, 2008, and administrative remedies were exhausted on December 8, 2008. Plaintiff filed his complaint on May 17, 2010, within the limitation period of two years which ended on December 29, 2010, and December 8, 2010, respectively. Plaintiff had until those dates to amend his complaint to name the proper parties, and has not done so. A §1983 complaint cannot be amended to identify an unnamed defendant correctional officer after the limitations period has run, unless "there has been an error made concerning the identity of the proper party and where that party is chargeable with knowledge of the mistake." King v. One Unknown Federal Correctional Officer, 201 F.3d 910, 914 (7th Cir. 2000) (citations omitted); Worthington v. Wilson, 8 F.3d 1253 (7th Cir 1993); Fed R. Civ. P. 15(c)(3). Plaintiff has made no allegations that the unnamed defendants prevented him from discovering their identity, thus the two-year statute of limitations requires dismissal of these defendants.

The court notes that Plaintiff did file on June 3, 2010, a Motion to Order Records, requesting documents from Menard that would disclose the names of employees working on the shifts pertinent to his complaint. It is unfortunate that due to the court's heavy caseload, this review could not be completed within a time frame that might have assisted Plaintiff in obtaining the information he sought. However, other avenues such as Freedom of ...


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