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Serio v. Westerman

United States District Court, S.D. Illinois

October 11, 2016

RAYMOND SERIO, #B-70625, Plaintiff,
v.
PAM WESTERMAN, KIMBERLY C. BUTLER, C/O MULLHOLLAND, and UNKNOWN PARTY, Defendants.

          MEMORANDUM AND ORDER

          STACI M. YANDLE United States District Judge.

         Plaintiff Raymond Serio, an inmate who is currently incarcerated at Pontiac Correctional Center, brings this civil rights action pursuant to 42 U.S.C. § 1983 against four officials at Menard Correctional Center. In the Complaint (Doc. 1), Plaintiff claims that these officials retaliated against him for filing grievances by denying him access to his personal property, including his legal materials, and subjecting him to cruel and unusual punishment (Doc. 1, pp. 1-31). Plaintiff now sues the following Menard officials for violating his federal rights under the First, Eighth and Fourteenth Amendments, as well as Illinois state law: Warden Kimberly Butler, C/O Westerman, C/O Mullholland and C/O John Doe (unknown correctional officer). Plaintiff seeks declaratory judgment, monetary damages and injunctive relief (id. at 12, 31-33).

         This case is now before the Court for a preliminary review of the Complaint pursuant to 28 U.S.C. § 1915A. Under § 1915A, the Court is required to promptly screen prisoner Complaints to filter out nonmeritorious claims. 28 U.S.C. § 1915A(a). The Court is required to dismiss any portion of the Complaint that is legally frivolous, malicious, fails to state a claim upon which relief may be granted or asks for money damages from a defendant who by law is immune from such relief. 28 U.S.C. § 1915A(b). The Complaint survives preliminary review under this standard.

         The Complaint

         Plaintiff transferred from Stateville Correctional Center (“Stateville”) to Menard Correctional Center (“Menard”) on October 15, 2014 (Doc. 1, p. 5). Prior to his transfer, an inventory was taken of Plaintiff's personal property. All of his possessions were listed on an offender personal property sheet.

         For the first two weeks after his transfer to Menard, Plaintiff was denied access to his personal property boxes.[1] On October 28, 2014, he received two property boxes. However, he was not provided with a copy of the personal property inventory that was created at Stateville (id.). Plaintiff claims that the following items were missing: (1) 1 RCA flat screen television; (2) 1 pair of Koss C-L 20 headphones; (3) 12 bottles of acrylic paint; (4) 40 paintbrushes; (5) 1 -18” x 24” pad of water color paper; (6) 40 colored pens; (7) 50 colored pencils; (8) 25 markers; (9) miscellaneous family photos; (10) 1 ruler; (11) 2 Gun Digest books; (12) 1 lamp with bulb; (13) 1 clip-on book light; (14) sweatpants; (15) gym shorts; (16) sweatshirt; (17) tattoo books; (18) 5 crewneck t-shirts; (19) 1 pad of tracing paper; (20) JVC ear buds; (21) 2 blue bed sheets; (22) 2 blue pillow cases; (23) 2 hairbrushes; (24) 1 thermal top; (25) 1 thermal bottom; (26) 2 towels; (27) 1 West Bend fan; (28) 1 pair of Nike gym shoes; (29) 1 waterproof folder; and (30) 1 bowl (id. at 6).

         On October 29, 2014, Plaintiff wrote grievances to Counselor Rowold[2] and Warden Butler to complain about his missing property (id. at 7). Counselor Rowold assured Plaintiff that she would “look into the matter” (id.). While he awaited the counselor's response, Plaintiff continued writing grievances, including emergency grievances, to Warden Butler. He “begged” the warden to intervene (id.).

         On November 11, 2014, Plaintiff was escorted to the personal property office, where he met with an unknown correctional officer, who is referred to herein as “C/O John Doe” (id. at 8). C/O Doe told Plaintiff that he had become a “pain in [the] ass” (id.). The correctional officer then pulled out a list of Plaintiff's missing personal property and a grievance Plaintiff addressed to the warden. As he reviewed the list, C/O Doe told Plaintiff why he could not have each of the items listed (id. at 9).

         C/O Doe denied having a box of Plaintiff's legal materials, but he ordered an inmate worker to retrieve Plaintiff's other personal property (id.). The inmate worker returned with three clear plastic bags of property as well as an unsealed cardboard box (id. at 10). The box contained privileged legal materials. C/O Doe asked Plaintiff if this was the “shit [he had] been crying about” (id.). Plaintiff confirmed that it was. He was then given an opportunity to sort through the box and take legal materials that he needed in his cell. After Plaintiff finished sorting through the box, C/O Doe failed to seal it (id. at 11).

         C/O Doe then refused to turn over several items of confiscated personal property to Plaintiff, including his headphones, paintbrushes and paints (id. at 12-13). When Plaintiff threatened C/O Doe with litigation over the issue, C/O Doe said, “[Y]ou want to act like a lawyer. I'm going to burn you[.] [Y]ou're not going to get shit. You already fucked up and filed a grievance on us and keep complaining to the warden. I promise its [sic] over[.] [Y]ou will never see any of this shit again[.] [Y]ou have my word” (id. at 14). At that, Plaintiff was escorted back to his cell. He continued to complain about his missing property in grievances that he addressed to the assistant warden and Warden Butler, to no avail.

         On January 24, 2015, Plaintiff asked a lieutenant to send his television to the vocational school for repair. C/O Westerman visited Plaintiff's cell to discuss the matter. She walked right up to the bars and said, “[W]ho the fuck do you think you are?” (id.). When Plaintiff asked C/O Westerman what she was talking about, she told him to “stop writing my officers up in personal property” (id. at 15). She too promised Plaintiff that he would never see his property again. In addition, C/O Westerman told Plaintiff that she would make his life a “living hell” (id.).

         On June 4, 2015, three correctional officers (i.e., Hanks, Mullholland and an unknown officer[3]) approached Plaintiff's cell and pounded on the window (id. at 16). Plaintiff and his cellmate were instructed to cuff up. When Plaintiff showed the officers his medical permit for a double cuff due to a “really messed up shoulder, ” C/O Mullholland said, “I don't care about this[.] [T]urn around and cuff up” (id.). C/O Mullholland then cuffed both of Plaintiff's wrists behind his back. He “jerked” Plaintiff by his cuffs and slammed his head twice “off the wall” (id. at 16-17). When Plaintiff became dizzy and staggered, C/O Mullholland smashed his face against the wall again and again. As he did so, the officer said, “[Y]ou want to fuck with my family, . . . [h]uh, you want to fuck with my people you fuck? [L]isten to me, this is Menard I can do whatever I want to you, believe me you can die in this cellhouse. Keep fucking with my family and see what happens to you” (id. at 17). The unknown correctional officer then strip searched Plaintiff and his cellmate. For weeks after this incident, Plaintiff suffered from excruciating pain in his head, right shoulder and neck (id. at 19). The Complaint is silent about the medical care he requested or received for these alleged injuries.

         When Plaintiff returned to his cell, he found his property scattered everywhere while his cellmate's property was “hardly touched” (id. at 18). Family photos of deceased family members were shredded and floating in the toilet. Legal papers were also torn up and other property was smashed. Several affidavits that Plaintiff obtained from fellow inmates after the January incident involving C/O Westerman were missing from his legal property. Plaintiff later learned that C/O Westerman is related to C/O Mullholland (id.).

         Plaintiff realized that “his life was sincerely at risk” (id. at 19). He had heard stories over the years about other inmates being beaten to death by officers at Menard. In “complete terror, ” Plaintiff was unable to sleep, eat or perform basic tasks (id.). He was overwhelmed by anxiety, fear and depression. In November or December, an officer[4] who worked in the television repair shop asked Plaintiff to “turn[ ] over” his television for repairs and, when Plaintiff refused, simply told Plaintiff that the television was no longer his (id. at 20).

         Plaintiff transferred to Pontiac Correctional Center (“Pontiac”) on December 30, 2015 (id.). He received his legal boxes from Menard's storage on January 17, 2016. Instead of the sealed boxes, Plaintiff received a paper bag containing some of the documents that he stored in the legal boxes (id. at 21). Missing from the collection were privileged legal documents and evidence that he intended to use in state court to challenge his criminal conviction. He could no longer find affidavits from affiants who had since died. Also missing were three civil rights Complaints that he prepared with the assistance of a jailhouse lawyer for filing against officials in the Illinois Department of Corrections (id.).

         Plaintiff now brings claims against Warden Butler, C/O Doe, C/O Westerman and C/O Mullholland for violations of his federal rights under the First, Eighth and Fourteenth Amendments, as well as his rights under Illinois state law. He seeks declaratory judgment, monetary damages and injunctive relief (id. at 31-33).

         Merits Review Under 28 U.S.C. § 1915A

         Based on the allegations, the Court finds it convenient to divide the pro se Complaint into the following counts. The parties and the Court will use these designations in all future pleadings and orders, unless otherwise directed by a judicial officer of this Court. The designation of these counts does not constitute an opinion regarding their merit.

Count 1: On or around November 11, 2014, Defendant Doe retaliated against Plaintiff for filing grievances to complain about missing property by denying Plaintiff access to his personal property and improperly storing his legal materials in violation of the First and Fourteenth Amendments (id. at 22-24).
Count 2: On January 24, 2015, Defendant Westerman retaliated against Plaintiff for filing grievances to complain about missing property by threatening to withhold his property from him and to make his life a “living hell” in violation of the First and Fourteenth Amendments (id. at 24-25).
Count 3: On June 4, 2015, Defendant Mullholland retaliated against Plaintiff for filing grievances to complain about his missing property by using excessive force against him and confiscating or destroying his personal property during a cell shakedown in violation of the First, Eighth and Fourteenth Amendments (id. at 24-25).
Count 4: Defendant Butler failed to adequately train and/or supervise Defendants Doe, Mullholland and Westerman and also turned a blind eye to their misconduct in violation of the First, Eighth and Fourteenth Amendments (id. at 26-27).
Count 5: Defendants conspired to violate Plaintiff's constitutional rights in an effort to protect one another from liability (id. at 29-30).
Count 6: Illinois state law claim for replevin under 735 ILCS § 5/19-101, et seq., against Defendants Doe ...

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