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Butler v. Harrington

United States District Court, S.D. Illinois

May 9, 2014

KENDRICK BUTLER, #M-03292, Plaintiff,
RICK HARRINGTON, et al., Defendants.


J. PHIL GILBERT, District Judge.

This matter comes before the Court for a threshold review of Plaintiff's Second Amended Complaint (Doc. 17), filed March 20, 2014, at the direction of the Court ( See Doc. 16). Plaintiff's civil rights claims arose while he was incarcerated at Menard Correctional Center ("Menard"). However, the action was filed soon after he was transferred to Pontiac Correctional Center ("Pontiac"), where he is now confined and is serving an 80-year sentence for murder.

Pending Motions

Also before the Court are three pending motions filed by Plaintiff (Docs. 14, 18, and 22).

The motion for recruitment of counsel (Doc. 14) shall be referred to a United States Magistrate Judge for disposition.

Plaintiff filed the motion to add documents and exhibits (Doc. 18) not long after he filed the Second Amended Complaint. The motion includes three pages of documents which relate to Count 3 herein (Doc. 18, pp. 2-4). This motion (Doc. 18) is GRANTED. The Clerk is DIRECTED to re-file pages 2-4 of Doc. 18 as exhibits to the Second Amended Complaint (Doc. 17).

Document 22 is a motion for status update, filed April 28, 2014. This motion (Doc. 22) is GRANTED in that the status of this case is reflected herein.


The original complaint (Doc. 1) included claims that the Court designated as 12 distinct counts. Upon initial review (Doc. 5), the Court determined that the allegations in Counts 2, 5, and 10 suggested that Plaintiff's constitutional rights had been violated, and he was directed to file an amended complaint to identify the responsible Defendants and flesh out his allegations. Counts 3, 4, a portion of Count 7, and Count 9 were dismissed without prejudice. Counts 1, 6, another portion of Count 7, and Count 8 were dismissed with prejudice. Finally, Counts 11 and 12 were dismissed without prejudice so that Plaintiff could pursue them in another case he filed shortly after bringing the instant action, Butler v. Anthony, Case No. 13-cv-1285-MJR-SCW.

Plaintiff filed a First Amended Complaint (Doc. 8) which was stricken from the record for failure to comply with the Order directing Plaintiff to amend the original complaint (Doc. 16). Plaintiff was again ordered to file an amended complaint in compliance with the Court's instructions. Id.

The Second Amended Complaint (Doc. 17)

Plaintiff's new amended complaint contains allegations relating to Counts 2, 3, 4, 5, 7, 9, and 10. He lists 33 Defendants (Doc. 17, pp. 1-5), [1] and attaches 26 pages of exhibits (Doc. 17-1).[2] For each count, Plaintiff's allegations shall be summarized below. Following the summary, the Court shall evaluate each claim in light of the requirements of 28 U.S.C. ยง 1915A. Section 1915A directs the Court to conduct a prompt threshold review of a 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.

Count 2 - Excessive Force

In December 2010 or January 2011, Plaintiff had been in the Marion County Jail on a federal court writ (Doc. 17, pp. 8-9). He was attacked there by Marion County Officer Defendant Carter. Right after this attack, Plaintiff was transferred back to Menard. Upon his arrival at Menard, Plaintiff was taken to a room in the North 2 segregation area, where he was assaulted by approximately eight officers in tactical uniforms including helmets and face shields (Doc. 17, p. 8). Only later was Plaintiff able to identify some of his assailants as Defendants Mezzo, Smith, Livingston, Federette/Federick, [3] and Krause.

Soon after the attack, a nurse saw bruises on Plaintiff's face, and notified Internal Affairs. Defendants Sgt. Hasemayer and Gaetez (the former Menard Warden, also spelled Gaetes) were notified of the incident but did nothing. Plaintiff was placed on investigation status in segregation for 30 days by either Defendant Gaetez or Patchison (also a former Menard Warden), where he was not provided with soap, toothpaste, or towels. He was not given any further medical treatment for his injured back and tailbone until a month after the incident. After he was returned to general population and was able to identify some of his attackers, he filed grievances with Defendants Summers, Allsap, and Pain/Robinson[4] (all counselors).

Plaintiff's allegations in Count 2 that he was attacked and assaulted by Defendants Carter, Mezzo, Smith, Livingston, Federette/Federick, and Krause, state an actionable Eighth Amendment claim against these officers for the excessive use of force. Plaintiff may proceed on this claim against these six Defendants.

However, Plaintiff fails to establish that Defendants Hasemeyer, Gaetez/Gaetes, Patchison, Summers, Allsap, or Pain/Robinson violated his constitutional rights. None of these individuals took part in the attacks on Plaintiff. Instead, they only became aware of the incident after the fact, when they were asked to investigate or to address Plaintiff's grievances or complaints. A defendant's failure to investigate or to satisfactorily resolve a grievance does not violate the Constitution. See Owens v. Hinsley, 635 F.3d 950, 953 (7th Cir. 2011). Similarly, the then-wardens cannot be held liable merely because they held supervisory authority over the officers who attacked Plaintiff, or because they failed to take action against the guards once they were made aware of the incident. See Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001). Therefore, Defendants Hasemeyer, Gaetez, Patchison, Summers, Allsap, and Pain/Robinson shall be dismissed from Count 2.

Finally, Plaintiff's allegations that he was denied some hygiene supplies while in investigative segregation, and that his medical treatment was delayed, state no claim. He fails to connect any Defendant with these alleged deprivations, nor does the complaint suggest that any person was aware of a serious risk to his health yet failed to act to mitigate the risk. The hygiene supply/medical deliberate indifference allegations in connection with Count 2 are therefore dismissed with prejudice.

To summarize, Count 2 shall proceed only against Defendants Carter, Mezzo, Smith, Livingston, Federette/Federick, and Krause, for excessive force.

Count 3 - Access to Legal Materials/Access to Courts

Plaintiff had a pending appeal of a federal criminal case in the Northern District of Iowa (Case No. 08-0072-4-MWB) in March of 2012 (Doc. 17, p. 9; Doc. 17-1, pp. 17-18).[5] He was challenging his sentence, which included an order for the payment of restitution that he sought to challenge. He did not have a lawyer representing him. Defendant Brammlet (Law Library Clerk) would not allow Plaintiff sufficient time in the library to conduct research, and Plaintiff did not have the funds to pay for copies of material that he could review outside the library. He alleges that Defendant Brammlet's denial of access to the library and legal materials caused him to miss his deadline to pursue the appeal.

At this stage, these allegations are sufficient to state a claim against Defendant Brammlet for denial of access to the courts. However, because this claim is factually and legally unrelated to the remaining claims in this action, and involves a Defendant who is not named in any other count, the Court shall sever it into a separate case. See George v. Smith, 507 F.3d 605 (7th Cir. 2007) (unrelated claims against different defendants belong in separate lawsuits). Plaintiff shall be given an opportunity to voluntarily dismiss this claim if he does not wish to incur an additional filing fee.

Count 4 - Disposal of Legal Material and Denial of Medical Care During Lockdown

After Plaintiff returned to Menard from a Cook County court writ, the prison was on lockdown during May, June, and July of 2011 (Doc. 17, p. 9). Defendant Gwaltney and other officers searched his cell and disposed of some of Plaintiff's legal material. Nobody conducted any review of the locked-down inmates' court deadlines, so Plaintiff was unable to obtain a ...

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