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Madison v. Scott

United States District Court, Seventh Circuit

October 29, 2013

TERRY MADISON, Plaintiff,
v.
GREGG SCOTT, et al., Defendants.

MERIT REVIEW OPINION

SUE E. MYERSCOUGH, District Judge.

Plaintiff, proceeding pro se and detained in the Rushville Treatment and Detention Center, seeks leave to proceed in forma pauperis.

The "privilege to proceed without posting security for costs and fees is reserved to the many truly impoverished litigants who, within the District Court's sound discretion, would remain without legal remedy if such privilege were not afforded to them." Brewster v. North Am. Van Lines, Inc. , 461 F.2d 649, 651 (7th Cir. 1972). Additionally, a court must dismiss cases proceeding in forma pauperis "at any time" if the action is frivolous, malicious, or fails to state a claim, even if part of the filing fee has been paid. 28 U.S.C. § 1915(d)(2). Accordingly, this Court grants leave to proceed in forma pauperis only if the complaint states a federal claim. A hearing was scheduled to assist in this review, but the hearing will be cancelled as unnecessary.

In reviewing the Complaint, the Court accepts the factual allegations as true, liberally construing them in Plaintiff's favor. Turley v. Rednour, ___ F.3d ___ , 2013 WL 3336713 * 2 (7th Cir. 2013). However, conclusory statements and labels are insufficient. Enough facts must be provided to "state a claim for relief that is plausible on its face.'" Alexander v. U.S. , 2013 WL 3215667 *2 (7th Cir. 2013)(quoted cite omitted).

ALLEGATIONS

On March 23, 2013, Plaintiff was coming inside from the yard at the Rushville Treatment and Detention Center. Officer Chenoweth stopped Plaintiff to conduct a pat-down search. Plaintiff asked if the scanner could be used instead, as Plaintiff had had a bad experience with a prior pat-down. Officer Chenoweth denied Plaintiff's request, as did Officers Pennock and Hougas. Officers Chenoweth, Cleavenger, Zimmerman, and Wilson then "slammed [Plaintiff] up against the wall with excessive force, and forcefully patted down" Plaintiff. (Complaint ¶ 6.) Defendant Chenoweth, Cleavenger, Zimmerman, and Wilson then "fondled the plaintiff's penis, grabbed and fondled his balls and stuck their hands up his buttock areas, this was done repeatedly to the plaintiff and made the plaintiff feel humiliated and disrespected...." (Complaint ¶ 7.)

Plaintiff was placed in "special management, " which appears to be akin to prison segregation. For three days Plaintiff was without his property and the special shoes he needs because of his diabetes.

Plaintiff was written a disciplinary ticket for a dangerous disturbance or other rule violation. No statements were taken from Plaintiff's requested witnesses, and the Behavior Committee- consisting of Defendants Jumper, Haage, and Groot-found Plaintiff guilty without reviewing the video tape. Plaintiff received a punishment of "close status" for seven days.

ANALYSIS

In order to state a procedural due process claim, Plaintiff must have suffered a constitutionally significant deprivation. Whether Plaintiff's 10 days on "close status" implicate a protected liberty interest is doubtful. Miller v. Dobier , 634 F.3d 412 (7th Cir. 2011)(imposition of "close" status at the Rushville Treatment and Detention Center did not trigger procedural due process protections). However, this cannot be determined without a more developed record. If Plaintiff was entitled to procedural due process, he arguably did not receive that process because he was not permitted to present exonerating evidence in the form of witnesses and a video recording of the incident. A procedural due process claim will therefore proceed against Behavior Committee Members Jump, Groot, and Haage.

No plausible inference arises that any of the other Defendants were personally responsible for the alleged procedural due process violations. Denying Plaintiff's grievances is not enough to make one personally liable for others' constitutional violations, even one's employees. Chavez v. Illinois State Police , 251 F.3d 612, 651 (7th Cir. 2001)(no respondeat superior liability under § 1983); Johnson v. Snyder , 444 F.3d 579, 583-84 (7th Cir.2006)(liability under § 1983 requires personal involvement); Soderbeck v. Burnett County , 752 F.2d 285, 293 (7th Cir. 1985)("Failure to take corrective action cannot in and of itself violate section 1983. Otherwise the action of an inferior officer would automatically be attributed up the line to his highest superior....").

Plaintiff also states a claim for excessive force and a claim arising from the alleged humiliating pat-down. See Washington v. Hively , 695 F.3d 641, 643 (7th Cir. 2012)(trial necessary to resolve whether guard touched inmate's private parts to humiliate inmate or to gratify guard's sexual desires); Calhoun v. DeTella , 319 F.3d 936, 939 (7th Cir. 2003)(strip search conducted in harassing manner intended to humiliate and inflict psychological pain stated claim). These claims proceed against Defendants Chenowith, Cleavenger, Zimmerman, and Wilson. A failure to intervene claim cannot be ruled out against Defendants Pennock and Hougas.

Plaintiff may also state an arguable claim based on the conditions he experienced in special management status, namely the lack of the shoes he needed because of his diabetes. An inference that any Defendant was personally involved in this claim is difficult to draw, since Plaintiff does not say what efforts he made to inform anyone that he needed special shoes. At this point, this ...


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