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R-62757 v. Givens

United States District Court, Seventh Circuit

December 12, 2013

VANCE WHITE, # R-62757, Plaintiff,


MICHAEL J. REAGAN, District Judge.

Plaintiff, currently incarcerated at Lawrence Correctional Center ("Lawrence"), has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff is serving a four-year sentence for possession of stolen vehicle parts, and a three-year sentence for bribery. Plaintiff claims that he has been subjected to cruel and unusual punishment in the form of ongoing sexual harassment and threats, and that he has experienced retaliation for complaining about the harassment.

More specifically, Plaintiff claims that in July 2013, Defendant C/O Baylor called Plaintiff out of his cell into a hallway. While Defendant C/O Givens and several inmate janitors listened, Defendant Baylor addressed Plaintiff over the intercom, calling him a "faggot, " "Geechie, " and other derogatory names describing homosexuals (Doc. 1, pp. 3-4). Plaintiff asked to be allowed to go back to his cell, but Defendant Baylor asked Plaintiff if he wanted to "suck his dick, " followed by other sexually explicit questions regarding Plaintiff's preferred sexual practices and whether he liked white or black partners. Defendant Baylor finally told Plaintiff that if he didn't want to "suck dick" he could go back to his wing. During this exchange, Defendant Givens and the inmate janitors laughed, teased, and taunted Plaintiff. Over the next several days, Defendants Baylor and Givens continued to harass and sexually proposition Plaintiff on multiple occasions, in the presence of other inmates (Doc. 1, p. 4).

Plaintiff called the PREA (Prison Rape Elimination Act) Hotline to report the intercom-harassment incident the same day it happened, and submitted a written grievance. As a result, Plaintiff was interviewed by Internal Affairs Lieutenant Stafford and Defendant Hodge (the warden). He told them about the initial incident as well as the continuing harassment, expressed his fear for his safety if he continued to be housed in the unit where Defendants Givens and Baylor worked after they were made aware of his complaint, and asked Defendant Hodge to move him to a different housing unit (Doc. 1, p. 5). Defendant Hodge refused to move Plaintiff, and told him not to "push the issue" because he would make himself a "big target." Id.

After the meeting at Internal Affairs, the harassment by Defendants Baylor and Givens continued and escalated into threats of harm. Defendant Baylor threatened and "verbally assaulted" Plaintiff on a regular basis during movement lines and other times when they were around each other. Defendant Givens threatened to "get Plaintiff back, " "get his ass beat, " and to send Plaintiff to segregation (Doc. 1, p. 5). None of these threats were carried out, but Defendant Givens did deny Plaintiff access to the showers and phones on multiple occasions, when Plaintiff should have been allowed these privileges. Plaintiff complained about the denial of showers and telephone, and again contacted the PREA hotline to report the retaliation, but has obtained no relief.

Plaintiff seeks an injunction ordering Defendants Baylor and Givens to cease their harassment and threats, and ordering his transfer to another prison. He also seeks compensatory and punitive damages.

Merits Review Pursuant to 28 U.S.C. § 1915A

Under § 1915A, the Court is required to conduct a prompt threshold review of the complaint, and to dismiss any claims that are frivolous, malicious, fail to state a claim on which relief may be granted, or seek monetary relief from an immune defendant.

Accepting Plaintiff's allegations as true, the Court finds that Plaintiff has articulated a colorable Eighth Amendment claim against Defendants Baylor and Givens for subjecting him to sexual harassment, and against Defendant Hodge for permitting the harassment to continue after Plaintiff requested him to intercede (Count 1). An inmate's claims that he is being harassed by prison officials may be actionable when done maliciously. Hudson v. Palmer, 468 U.S. 517, 528-30 (1984) (calculated harassment without penological justification may raise Eighth amendment claim). Moreover, the public and sexual nature of the verbal harassment may place Plaintiff at risk of assault by other inmates.

Further, he has stated a cognizable retaliation claim against Defendant Givens for the denial of privileges after Plaintiff lodged a complaint against him (Count 2).

However, Plaintiff fails to state a claim upon which relief may be granted against Defendant Godinez, and he shall be dismissed from the action. The complaint does not indicate that Defendant Godinez had any personal involvement either in the harassment directed at Plaintiff, or in the decision to keep him housed in the unit where he could continue to be the target of harassment by Defendants Baylor and Givens. Defendant Godinez' position as corrections director does not impose liability on him, because the doctrine of respondeat superior is not applicable to § 1983 actions. Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001) (citations omitted). Nor does it appear at this stage that he is a necessary party to carry out any injunctive relief to which Plaintiff might be entitled. Accordingly, Defendant Godinez shall be dismissed from the action without prejudice.

Pending Motions

Plaintiff has filed two motions seeking injunctive relief (Docs. 2 & 3), and on December 9, 2013, filed a motion for a temporary restraining order ("TRO") (Doc. 7), indicating that the threats from Defendants Baylor and Givens are continuing. These motions shall be referred to a United States Magistrate Judge for further consideration as soon as practicable.

Plaintiff's motion for leave to proceed in forma pauperis ("IFP") (Doc. 4) shall be addressed by the undersigned Judge in a separate order. Plaintiff is REMINDED that he must submit his prison trust fund statements as directed in the order at Doc. 6, no ...

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