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Cole v. Johnson

United States District Court, S.D. Illinois

November 6, 2014

DAMEON COLE, No. R13404, Plaintiff,


J. PHIL GILBERT, District Judge.

Plaintiff Dameon Cole, who prefers to be called Devine Desire Cole, is a transgender inmate housed in Lawrence Correctional Center. Plaintiff brings this action for deprivations of her[1] constitutional rights pursuant to 42 U.S.C. § 1983, based on an ongoing, systemic failure to house Plaintiff with cellmates who do not pose a risk to her safety, and for otherwise ignoring her safety concerns.

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.

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). Frivolousness is an objective standard that refers to a claim that "no reasonable person could suppose to have any merit." Lee v. Clinton, 209 F.3d 1025, 1026-27 (7th Cir. 2000). 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). The claim of entitlement to relief must cross "the line between possibility and plausibility. Id. at 557. At this juncture, the factual allegations of the pro se complaint are to be liberally construed. See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).

Motion to Add Exhibits

As a preliminary matter, Plaintiff's motion for leave to add exhibits to the complaint (Doc. 9) must be addressed. Although Local Rule 15.1 generally requires a complaint to be submitted as a single document, amendment at this early point is permitted without leave of court. See Fed.R.Civ.P. 15(a)(1). In order to prevent further delay, Plaintiff's motion for leave to add exhibits (Doc. 9) will be granted and Doc. 1 and the exhibits (once they are filed) will be construed together as constituting the complaint.

Synopsis of the Complaint

The complaint offers a lengthy narrative of events running from approximately August 2013 through September 2014. Plaintiff describes herself as displaying some feminine characteristics, receiving feminine hormones, but not having had sexual reassignment surgery. Since arriving at Lawrence in March 2013, Plaintiff has had difficulty with her assigned cellmates. Initially, she was housed with gang members and older men-men who were bigger than she, and who were sexually propositioning her. When she told staff, in most instances her concerns were accommodated and a new cellmate was found. However, beginning in approximately January 2014, staff began forcing inmates to be celled with Plaintiff-inmates who propositioned her or simply did not want to be celled with her-creating a hostile, if not unsafe environment.

Plaintiff directed an emergency grievance to Warden Marc Hodge seeking placement under "vulnerable status, " or to be single celled, or celled with an inmate from Plaintiff's list of acceptable inmates ( see Exhibit A). According to the complaint, that grievance was denied, and the subsequent appeal to Sherry Benton, the administrator of inmate issues, was also unsuccessful, in that Benton found the grievance had not been properly submitted and/or it was premature and had to first be presented to a counselor ( see Exhibit B).

Plaintiff complained to Lieutenant Chad J. Jennings about the situation, but Jennings stated that he was not the housing lieutenant, indicating that Plaintiff should wait to see that official, who Plaintiff asserts never appears in the housing unit.

Internal Affairs officers Jeffrey J. Molenhour and John Doe #1 interviewed Plaintiff and Plaintiff explained how Sergeant Newlin would "constantly walk in the bathroom on Plaintiff and was telling people that Plaintiff was a snitch. John Doe #1 explained that he had known Newlin for many years and that it was Plaintiff who was "wrong for being gay." Molenhour did take down Plaintiff's statement, but nothing ever happened. Newlin is not a named defendant.

In March 2014, an inmate who staff purportedly knew was HIV-positive, was moved to Plaintiff's housing wing, Cedrick L. Johnson. Johnson and Plaintiff had a known "relationship, " and on one occasion, at inmate Johnson's request, John Doe #3 opened Plaintiff's cell door so that Johnson and Plaintiff could have sexual relations. Plaintiff was unaware at that time that Johnson was HIV-positive; once Plaintiff found out, Johnson transferred out of the housing unit.

Panicked about the possible health consequences from having sex with Johnson, Plaintiff reported the sexual episode to officials. Internal Affairs Officer Molenhour and John Doe #4 interviewed Plaintiff. The correctional officer who had opened Plaintiff's cell was never disciplined, but Plaintiff received a disciplinary report for sexual activity. Major Jennings and C/O Eldon L. Cooper were on the disciplinary board that took Plaintiff's guilty plea; Plaintiff was punished with three months of segregation. Jennings and Cooper stated that Plaintiff would be transferred, but a transfer recommendation was not made a part of the disciplinary decision ( see Ex. CC). Internal Affairs Officer Moldenhour also refused to speak with Plaintiff or to press criminal sexual assault charges against inmate Johnson.

In June 2014, Plaintiff sent an emergency grievance to Warden Duncan, but Plaintiff never received a response. Plaintiff forwarded the grievance to the Administrative Review Board requesting protective custody. Another grievance was lodged regarding the officer who allowed Johnson into Plaintiff's cell, but nothing ever happened. When Warden Duncan made rounds in the cellhouse, Plaintiff spoke to him directly, asking about the grievances and requesting protective custody. Warden Duncan laughed and said that he would have Internal Affairs speak with Plaintiff, but nothing ever happened.

In an apparent attempt to get officials to take action, Plaintiff wrote a "kite" to the warden, indicating that because he was punished for the sexual incident with Johnson, she would refuse future HIV tests and would set out to have sex with any willing inmate or staff member. Officer Molenhour issued Plaintiff a disciplinary report for intimidation or threats ( see Ex. E). The disciplinary hearing committee comprised of C/O Howard B. Simms and Melissa M. Ochs, thought the disciplinary report was "funny" and they punished Plaintiff with three more months in segregation.

Plaintiff perceives that he is being retaliated against-presumably for the intimidating or threatening kite. Plaintiff's subsequent requests for protective custody were ignored and her next five cellmates all "indulged in prison sex." Grievances sent to Assistant Warden Beth Treadway have also not been addressed. In August 2014, when Plaintiff spoke with Warden Duncan about the unanswered grievances, Duncan only responded, "[D]o what you do and I'll deal with it when it happens; enjoy yourself." Then Duncan laughed and walked away.

Plaintiff details multiple staff assaults and other incidents that occurred to other inmates. Plaintiff explains that he lives in "steady and constant fear of retaliation from staff for grievances written."

In September 2014, Plaintiff was celled with an inmate even though both Plaintiff and the cellmate told C/O John Doe #5 and "a Lieutenant John Doe" that they "shared a difference, " did not know what would happen if they were celled together, and they both feared for their lives. C/O John Doe #5 laughed and the unidentified officer told them they would have learn to "f*** or fight, " and that he would be back in 20 minutes to see who was alive. Subsequent grievances sent to "all three wardens" were to no avail.

Plaintiff contends that Warden Duncan and Illinois Department of Corrections Director Salvadore A. Godinez both have policies, practices and customs of failing to investigate incidents, failing to separate or transfer known enemies, and failing to protect inmates, which lead to Plaintiff being injured.

Plaintiff alleges that the defendants failed to protect him and subjected him to cruel and unusual punishment in violation of the Eighth Amendment, and denied him his Fourteenth Amendment rights to due process and the equal protection of the law. The prayer for relief includes declaratory judgment, compensatory and punitive damages, preliminary and permanent injunctions, a transfer and guarantee that Plaintiff will never again be housed at Lawrence Correctional Center, and the criminal prosecution of inmate Johnson.


Because of the shotgun presentation of allegations, the Court finds it convenient to address the allegations ...

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