United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
M. YANDLE United States District Judge.
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).
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.
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.
first two weeks after his transfer to Menard, Plaintiff was
denied access to his personal property boxes. 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).
October 29, 2014, Plaintiff wrote grievances to Counselor
Rowold 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
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).
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).
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.
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.).
4, 2015, three correctional officers (i.e., Hanks,
Mullholland and an unknown officer) 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
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
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 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).
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.).
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).
Review Under 28 U.S.C. § 1915A
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
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 ...