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Aguilar v. Lemke

United States District Court, N.D. Illinois, Eastern Division

January 9, 2017

OMAR AGUILAR, Plaintiff,
v.
MICHAEL LEMKE, CHARLES F. BEST, ANNA McBEE, TARRY WILLIAMS, SERGEANT JOHNSON, LIEUTENANT JENKINS, BRENNA GEORGE, SALVADOR GODINEZ, and KIM BUTLER, Defendants.

          OPINION AND ORDER

          SARA L. ELLIS United States District Judge.

         Plaintiff Omar Aguilar, an inmate challenging his time in and the conditions he experienced while in segregation and restrictive confinement at Stateville Correctional Center (“Stateville”), brings suit against Defendants Michael Lemke, Charles F. Best, Anna McBee, Tarry Williams, Sergeant Johnson, Lieutenant Jenkins, Brenna George, Salvador Godinez, and Kim Butler pursuant to 42 U.S.C. § 1983.[1] Aguilar brings a claim for due process violations against Best, McBee, George, and Godinez (Count I);[2] a conditions of confinement claim against Lemke, Williams, Johnson, Jenkins, and Godinez (Count II); and a First Amendment free exercise of religion claim against Lemke, Williams, Johnson, Jenkins, and Godinez (Count III). Defendants Best, Godinez, and McBee have filed a motion to dismiss Aguilar's second amended complaint.[3] Because the Court finds that Aguilar's claims all arise out of the same series of occurrences, the Court refuses to sever the conditions of confinement and religious exercise claims from the due process claim. The Court also finds that Aguilar has sufficiently alleged the elements of his due process claim, leaving the factual determinations Best and McBee ask the Court to make for later proceedings. Finally, the Court finds Aguilar has sufficiently alleged a systemic issue concerning the restriction of his religious activities so as to assert that claim against Godinez, the Illinois Department of Corrections (“IDOC”) director at that time.

         BACKGROUND[4]

         On February 15, 2013, members of Stateville's Internal Affairs unit conducted a cell search of two cells, E-711 and B-811. They uncovered a handmade weapon-a shank-in a plumber's access area adjacent to the two cells. Based on the discovery, they placed Aguilar, who lived in B-811, his cellmate, and the two inmates living in E-711 in temporary confinement under investigative status. Aguilar maintains he did not have access to items in the plumber's access area and so could not remove the shank from it.

         On February 18, Officer Milsap issued an investigative report, which did not specify Aguilar's behavior on February 15 or the reasons for placing him under investigative status. Aguilar also did not receive a shakedown receipt documenting the contraband found during the February 15 search, the circumstances of the shank's discovery, those present at the time of its discovery, and whether a disciplinary report was issued. Aguilar remained in temporary confinement under investigative status for 32 days without any written notice of the charges under investigation.

         On March 14, Aguilar took a voice stress analyzer (“VSA”) test. At the time he took the VSA test, he was under the care of a psychiatrist and taking Depakote and Zoloft for stress, anxiety, mood swings, and depression. Aguilar was asked four questions several times: “(1) Did you see your cellmate sharpen the shank? (2) Did you sharpen the shank on the bed? (3) Did you place the shank in the pipe chase? and (4) Was the shank yours?” Doc. 42 ¶ 25. Aguilar responded negatively to all four questions. The person administering the test told Aguilar that the first round of questioning was inconclusive. The VSA test results indicated Aguilar was truthful on the first two questions and deceptive on the last two questions.

         On March 18, Aguilar received a disciplinary report charging him with “104: Dangerous Contraband” and “303: Giving False Information to an Employee.” Doc. 42 ¶ 27. The report stated that the investigative unit found a shank in a plumber's access area between Aguilar's cell and the adjoining one and that scratch marks were found on the bottom metal bunk in Aguilar's cell. The report also included the VSA results, concluding the deceptive answers substantiated Aguilar's involvement. Correctional Officer Ricardo Tejeda signed as the reporting officer, even though he did not participate in the search of Aguilar's cell.

         On March 29, Stateville's disciplinary board, chaired by Best and with George as a member, held a hearing on Aguilar's disciplinary report. Prior to the hearing, Aguilar wrote to J. Clements, a correctional officer, and the IDOC investigations unit requesting the name of the person who administered the VSA test and a copy of the VSA test result. He never received this information. Aguilar also asked to retake the VSA test, but that request was denied. At his disciplinary board hearing, Aguilar testified he did not know anything about the shank, that he had been wrongfully held in investigative detention without receiving a disciplinary report, and that his taking psychiatric medication affected the reliability of the VSA test results. Aguilar asked to have three witnesses testify on his behalf. Although these witnesses testified, Aguilar was not present and so did not have the opportunity to ask them questions or submit questions for these witnesses to answer. These three witnesses testified that they heard scraping sounds in Aguilar's cell when the officers conducted the search of the cell on February 15. The disciplinary board found Aguilar guilty of both possessing dangerous contraband and giving false information to an employee, imposing a punishment of 6 months C grade, 6 months segregation, and 6 months commissary restriction. Lemke, then Stateville's warden, approved the disciplinary board's report on April 10.

         Aguilar filed an emergency grievance on May 14 concerning the disciplinary hearing. The following day, he wrote Counselor Mansfield to ensure that his grievance was provided to the appropriate individual. Lemke denied that his grievance constituted an emergency and required that Aguilar submit it through the normal procedure. On July 22, Stateville grievance counselor Alex Hall instructed Aguilar to forward his grievance to a grievance officer for review, which Aguilar did. McBee, one of Stateville's grievance officers, reviewed Aguilar's request to expunge the disciplinary report from his record but upheld the disciplinary sanctions.

         While in temporary confinement and then in segregation, Aguilar was housed in Stateville's F-House, also known as the Roundhouse. Aguilar could not make phone calls, could only have two non-contact visits per month, was limited to $30 per month in spending at the commissary, and had access to the yard only one time per week for five hours. During these five hours, Aguilar was placed in a small uncovered cage without access to a bathroom and with no respite from the elements. While inside, he was mainly restricted to his cell, could not attend religious and recreational services, and, when allowed out of his cell, had to travel with a chain and handcuffs that locked around his waist and hands and have his feet shackled when stationary.

         In November 2013, approximately a month after Aguilar was released from disciplinary segregation, Lemke, with oversight from Godinez, instituted a Weapons Violator/Staff Assaulter program, also known as the Black Stripe program. This program placed additional restrictions for a two-year period on those who, like Aguilar, had violated weapons rules or assaulted Stateville staff. Consequently, Aguilar moved back to F-House, had to wear a black and white striped jumpsuit, could not participate in work assignments, had to eat breakfast and dinner in his cell, had only five hours of recreation in the small yard per week, had no contact visits with his family, could not enroll in educational and recreational services, and could spend no more than $30 per month at the commissary. Aguilar also could not participate in religious services. Aguilar specifically complained about the denial of access to religious services in a grievance filed on March 29, 2015, but that grievance went unanswered.

         In addition to these restrictions, Aguilar's cell in F-House was significantly smaller than that occupied by those in regular population, measuring approximately 4'9” by 10'6”. Being in such a small space with another inmate for almost 24 hours each day caused Aguilar significant psychological issues. Due to its round shape, F-House is extremely noisy, making it difficult for Aguilar to sleep. Aguilar's cell had significant amounts of green and black mold on the walls of his cell, which he had difficulty cleaning without adequate cleaning supplies. He also encountered cockroaches, mice, and birds in his cell. Due to a hole in the ceiling, water leaked directly onto an electrical socket. Faulty plumbing meant that the toilet and sink in the cell did not always work. And because many cells, including Aguilar's, had broken windows, Aguilar faced extremely cold temperatures while in F-House. Exposure to these conditions caused Aguilar to suffer abdominal pain and sinus and respiratory illnesses. Aguilar verbally complained about these issues to Sergeant Johnson and Lieutenant Jenkins in August 2014, who both worked shifts at F-House during that time. He also submitted an emergency grievance report on September 3, 2014, which Williams, the warden at the time, denied, and then never received a response from the assigned grievance counselor.

         LEGAL STANDARD

         A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the complaint, not its merits. Fed.R.Civ.P. 12(b)(6); Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). In considering a Rule 12(b)(6) motion to dismiss, the Court accepts as true all well-pleaded facts in the plaintiff's complaint and draws all reasonable inferences from those facts in the plaintiff's favor. AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th Cir. 2011). To survive a Rule 12(b)(6) motion, the complaint must not only provide the defendant with fair notice of a claim's basis but must also be facially plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A ...


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