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Cedric Dupree v. Major Tom Maue

March 18, 2011

CEDRIC DUPREE, PLAINTIFF,
v.
MAJOR TOM MAUE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Murphy, District Judge

MEMORANDUM AND ORDER

On September 2, 2008, Plaintiff, an inmate confined at the Pontiac Correctional Center, filed this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff's second amended complaint, filed by appointed counsel, uses the designations of claims set forth on threshold review conducted pursuant to 28 U.S.C. § 1915A. These claims are summarized below.

Count 1 (First Amendment retaliation): Plaintiff claims that he successfully brought a § 1983 action against staff at Pontiac Correctional Center (PCC) and that Defendants in this case, who are prison staff members at Menard Correctional Center (MCC) and Southwestern Illinois Correctional Center (SWICC), took retaliatory actions against him as described in Counts 3, 4, 5, 12, 13, 14, and 15 because of Plaintiff's previous and current litigation activities.

Count 3 (Eighth Amendment excessive force): On or about September 19, 2006, Defendant Joshua Fritz slapped Plaintiff in the face and stomped on his toes. Count 4 (Eighth Amendment medical needs): On or about September 19, 2006, Defendant John Mohr, who it appears was a prison nurse, failed to provide Plaintiff adequate care for his panic attack and wrist cutting and further instructed Plaintiff how to cut deeper and slice his wrists.

Count 5 (Due Process, Eighth Amendment medical needs, Eighth Amendment conditions of confinement, First Amendment religious rights): Between September 13, 2006, and October 5, 2006, Defendants Mirza Baig, who was a prison doctor, and Joe Harper placed Plaintiff on suicide watch and forcibly injected Plaintiff with "psychotropic medication" against his will and in violation of his religious beliefs (due process and religious rights); during this time, Defendants Baig and Harper refused to restrain Plaintiff, allowing him to cut himself and eat his own feces (medical needs); Defendant Fritz stripped Plaintiff naked, and while on suicide watch, Plaintiff was placed in a room that was "about" 42 degrees (cell conditions).

Count 12 (religious rights under the First Amendment and Religious Land Use and Institutionalized Persons Act (RLUIPA)): While Plaintiff was confined at SWICC, Defendant Don Sanford ordered Defendant David Kappler to impinge Plaintiff's religious activities; Defendant Kappler issued Plaintiff a disciplinary ticket for praying, singing, and witnessing (i.e., telling others about Jesus); Defendant Biggerstaff issued Plaintiff a disciplinary ticket for possessing a Bible; Defendants Karen Barber and Heather Grote-Johnson instructed Plaintiff not to mention the name of God or Jesus.

Count 13 (Eighth Amendment excessive force): On October 3 and 4, 2006, Defendant Brian Thomas "maliciously and sadistically" twisted and pulled down on Plaintiff's handcuffs, causing cuts, bruises, extreme pain, and possible permanent scarring on Plaintiff's wrists.

Count 14 (Eighth Amendment excessive force): On May 6, 2008, Defendants David Holder, George Holton, and Michael Schnicker handcuffed Plaintiff in his cell and beat him, ordered him to drop his lawsuits, and threatened further beating if he didn't do so; these Defendants beat Plaintiff's head against the wall "and tore his toenails out of his feet and left him in his cell bleeding."

Count 15 (Eighth Amendment medical needs): After beating Plaintiff on May 6, 2008, Defendants Holder, Holton, and Schnicker "left Plaintiff laying in his cell bleeding and unconscious without giving him or offering him any medical attention;" Plaintiff attended a federal court hearing with his feet and toes still bleeding and no medical treatment. (See Doc. 145). Several housekeeping matters are in order. First, Plaintiff names Major Tom Maue and Rachel Vasquez in the caption of his Second Amended Complaint but asserts no claims against them. Defendants Maue and Vasquez are dismissed and terminated on the Court's docket. Next, this Court previously dismissed with prejudice Plaintiff's RLUIPA claim (see Doc. 70). Accordingly, only Plaintiff's First Amendment claim remains in Count 12. Defendants' motion to dismiss on these bases (Doc. 139), which the Court construes as a motion to clarify, is GRANTED; the record shall so reflect.

Defendants Sanford and Kappler move for summary judgment on Count 12 because the First Amendment claim is barred by the statute of limitations and by res judicata. Plaintiff has not been confined at SWICC since 1999. He filed a lawsuit against Defendants Sanford, Kappler, Biggerstaff, Barber, Grote-Johnson, and others in 2002. See Dupree v. Laster, Case No. 02-cv-1059-DRH (S.D. Ill. filed Oct. 7, 2002). In that case, now-Chief District Judge David R. Herndon found that Plaintiff's First Amendment and RLUIPA claims against these defendants were barred by the statute of limitations. There is no question that Plaintiff's First Amendment claim asserted in Count 12 in the present case likewise is barred by the statute of limitations; accordingly, Count 12 is DISMISSED with prejudicein its entirety.*fn1 This ruling applies to Defendants Sanford and Kappler, who filed the motion; Defendants Biggerstaff and Grote-Johnson, who have not been served in this action; and Defendant Barber, who has not answered or otherwise appeared in the action.

Because Plaintiff's retaliation claim against Defendants Sanford, Kappler, Biggerstaff, Grote-Johnson, and Barber is based upon conduct that is barred by the statute of limitations, the retaliation claim asserted in Count 1 similarly fails as against these Defendants. Counts 1 and 12 are the only claims asserted against these Defendants, and summary judgment hereby is granted in favor of these Defendants on both claims. Consequently, Defendants Sanford, Kappler, Biggerstaff, Grote-Johnson, and Barber are DISMISSED with prejudice from this action. The Report and Recommendation submitted by United States Magistrate Judge Philip M. Frazier recommending that Defendants Biggerstaff and Grote-Johnson be dismissed without prejudice for Plaintiff's failure to effectuate service (Doc. 150) is REJECTED as moot. Moreover, the default entered against Defendant Barber on November 22, 2010 (Doc. 155) is VACATED. This Court will not enter a default on such egregiously untimely claims. Consequently, Plaintiff's motion for default judgment against Defendant Barber (Doc. 156) is DENIED.

Defendants Thomas, Harper, Mohr, Fritz, and Baig seek summary judgment on Count 1 because Plaintiff admitted in his deposition that he has no evidence that these Defendants knew about Plaintiff's previous litigation activities; therefore, Plaintiff cannot prove that his protected speech prompted the alleged misconduct. See generally Fairley v. Andrews, 578 F.3d 518 (7th Cir. 2009) (a plaintiff must show that his protected speech caused the complained of conduct). Plaintiff was deposed on March 12, 2010. The deposition transcript was submitted in its entirety by Defendant Baig (see Doc. 157-5), and the following testimony was elicited as to each of these Defendants.

Defendant Fritz: Plaintiff does not have any evidence that Defendant Fritz knew about Plaintiff's previous lawsuits (Tr. at 40:17 through 41:1).

Defendant Mohr: Plaintiff does not have any evidence that Defendant Mohr knew about Plaintiff's previous ...


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