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Butler v. Veath

United States District Court, S.D. Illinois

February 18, 2015

KENDRICK BUTLER, # M-03292, Plaintiff,
v.
RICHARD HARRINGTON, KIMBERLY BUTLER, I.A. BRANDON ANTHONY, JEANETTE HECHT, GAETZ, [1] HART, COUNSELOR NIPPE, McCLURE, PHELPS, JOHN DOES (Shift Commander & Supervisor), and VEATH, Defendants.

MEMORANDUM AND ORDER

J. PHIL GILBERT, District Judge.

This matter is before the Court for a preliminary merits review of Plaintiff's pro se civil rights complaint filed on January 21, 2015, pursuant to 42 U.S.C. § 1983. Plaintiff is currently incarcerated at Pontiac Correctional Center ("Pontiac"), but his claims arose while he was confined at Menard Correctional Center ("Menard"). The events complained of occurred between September 11 and November 29, 2013. After Plaintiff was charged with a disciplinary infraction, his grievances were ignored, he was placed in several cells infested with vermin and lacking water or lights, and he was subjected to excessive force in retaliation for having pursued grievances against the officer who initiated the discipline.

A review of Plaintiff's prior litigation activity in this district reveals that the claims in this new complaint overlap with those in two of his earlier cases. In December 2013, Plaintiff filed two cases within three days of one another, Butler v. Harrington, et al., Case No. 13-cv-1270-SMY-PMF (filed Dec. 10, 2013), and Butler v. Harrington, et al., Case No. 13-cv-1285-MJR-SCW (filed Dec. 13, 2013). For clarity, these shall be referred to herein as Butler I and Butler II, respectively. Both cases contained a number of identical claims, but Butler II identified several Defendants who had been omitted from Butler I, and included one additional claim. Upon conducting the threshold review of the complaint in Butler I, the Court divided Plaintiff's claims into twelve counts. Counts 1-10 were addressed in Butler I. Counts 11 and 12, plus an additional Count 13, were addressed in Butler II.

Butler I is still pending, and several claims survived threshold review. Two of the claims in that case (Count 7, which was dismissed, and Count 10, which is still pending) relate to Plaintiff's allegations herein regarding his disciplinary charge and placement in segregation on September 11, 2013.

Butler II was dismissed without prejudice on January 12, 2015, for failure to exhaust administrative remedies (Doc. 87 in Butler II ). Several of the claims in the instant case raise the same issues as Plaintiff raised in Butler II (in Counts 11, 12, and 13). Therefore, it appears that he is trying to pursue those claims once again, presumably after having now exhausted his appeals within the prison grievance system.

The Complaint

Plaintiff's statement of claim begins by asserting that he was placed in segregation on September 11, 2013, "for a fight that had gotten upgraded to other charges by Officer Brandon Anthony because of his gang affiliation with the other contestant" (Doc. 1, p. 8). Defendant Anthony told Plaintiff he would be found guilty. At Plaintiff's hearing on the charges, Defendants Hart and Veath informed Plaintiff that they had already talked with Defendant Anthony, and they did not care how Plaintiff pled. Plaintiff immediately filed two grievances. He asserts that Defendants Hart and Veath are both "in some form of corruption to retaliate against the Plaintiff and find him guilty falsely." Id.

In October 2013, Plaintiff spoke to Defendants Harrington (warden) and Butler (assistant warden) during their rounds. He informed them of the above incident and told them they should have received his grievances, but they did nothing. Defendant Counselor Nippe did rounds in November 2013, and Plaintiff asked her to help him complete the grievance process because he was indigent. He filed a grievance against her for refusing to assist him. She responded that he had funds in his account, and walked away (Doc. 1, p. 9).

In November 2013, Plaintiff filed another (emergency) grievance against Defendant Anthony, claiming that he, Defendant Nippe, and Defendants Veath and Hart, "are all working in cahootz [sic] to keep the Plaintiff in segregation." Id. Defendants Hecht and Anthony then formed a plan to retaliate against Plaintiff by getting the approval of the John Doe Defendant Shift Commander and the other John Doe Defendant to move Plaintiff to another cell. They placed him first in a cell on Five Gallery that was infested with rats, bugs, and other "critters" that crawled on Plaintiff and bit him. This cell also had no water or light. A few days later, they moved Plaintiff to Cell 6/11, which also lacked light and water, and was infested with the same vermin. He spent between four days and 1-1/2 weeks in that cell. He then was moved to cell 4/08, which again lacked light and water, but the water was turned on after about five days.

Defendants Hecht and Anthony wrote a false disciplinary report, claiming that Plaintiff gave orders to another gang member (he does not elaborate further on what he was alleged to have ordered that person to do). Plaintiff's alleged gang is in conflict with the Gangster Disciples, and he claims Defendant Anthony has ties to the Gangster Disciples (Doc. 1, p. 10). The placement in unsanitary cells and this disciplinary report incident took place between November 9 and November 29, 2013, at which time Plaintiff was transferred to Pontiac.

Finally, Plaintiff alleges that over a three-day period, Defendants Goetz, Phelps, and McClure placed him in handcuffs and leg shackles at various times, during the 3-11 shift and midnight shift. This was ostensibly done because Plaintiff had call passes to leave his cell, but in fact their purpose was to inflict pain on him in retaliation for the grievances he had filed against Defendant Anthony. On one occasion, Defendant Anthony assisted in the cuffing. Another time, Defendants Goetz and Phelps "attacked" Plaintiff while escorting him in handcuffs through a back stairwell (Doc. 1, p. 11). Plaintiff does not give the dates of these incidents.

Plaintiff 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.

Based on the allegations of the complaint, the Court finds it convenient to divide the pro se action into the following seven counts (as shall be noted in the discussion below, some of these counts correspond to claims in Plaintiff's previous actions, Butler I and Butler II ). The parties and the Court will use these designations in all future pleadings and orders in this case, unless otherwise directed by a judicial officer of this Court. The designation of these counts does not constitute an opinion as to their merit.

Count 1: Defendants Anthony, Hart, and Veath falsely found Plaintiff guilty of disciplinary charges over a fight on September 11, 2013, in order to retaliate against Plaintiff;
Count 2: Defendants Harrington, Butler, and Nippe refused to respond to Plaintiff's grievances or his requests for help in appealing those grievances relating to Count 1;
Count 3: Defendants Anthony, Hecht, and the two John Doe Defendants retaliated against Plaintiff for pursuing grievances against Defendant Anthony, by placing him in cells infested with vermin and lacking water or lights;
Count 4: Defendants Anthony, Hecht, and the two John Doe Defendants subjected Plaintiff to unconstitutional conditions of confinement by placing him in cells ...

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