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Young v. Nailor

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

May 16, 2017

Davon Young (M-52768), Plaintiff,
v.
Scott Nailor, et al., Defendants.

          ORDER

          FREDERICK J. KAPALA, JUDGE

         Plaintiff's second application for leave to proceed in forma pauperis [8] is granted. The Court orders the trust fund officer at Plaintiff's place of incarceration to deduct $51.73 from Plaintiff's account for payment to the Clerk of Court as an initial partial payment of the filing fee, and to continue making monthly deductions in accordance with this order. The Clerk of Court shall send a copy of this order to the trust fund officer at the Dixon Correctional Center. The Court further directs the Clerk of Court to: (1) file Plaintiff's complaint [1]; (2) issue summonses for service on Defendants Warden Donald Enloe and C/O Scott Nailor by the U.S. Marshal; and (4) send Plaintiff two blank USM-285 service forms, a magistrate judge consent form, filing instructions, and a copy of this order. Plaintiff's motion for service of process at government expense [4] is granted, pending Plaintiff's compliance with this order. The Court advises Plaintiff that a completed USM-285 form is required for service on each Defendant (Enloe and Nailor). The U.S. Marshal will not attempt service on a Defendant unless and until the required form for that Defendant is received. The U.S. Marshal is appointed to serve Defendants Enloe and Nailor. Plaintiff's motion for attorney representation [5] is denied without prejudice to later renewal.

         STATEMENT

         Plaintiff Davon Young, an Illinois prisoner housed at Dixon Correctional Center, brought this pro se civil rights action, invoking 42 U.S.C. §§ 1981 and 1983, claiming that prison officials have discriminated against her for her transgender status and retaliated against her for submitting a grievance and Prison Rape Elimination Act (“PREA”) report about the incident. Plaintiff alleges that she is a transgender inmate. (Dkt. 1, pg. 6, 10, 1.) On February 23, 2016, as she and two other (apparently transgender) inmates entered a building “for prayer room, ” they passed Correctional Officer Scott Nailor, who was stationed at a desk speaking on the telephone. (Id. at 6.) They turned to Nailor after hearing him direct “fags” to “push the fuck on.” (Id.) While other inmates and staff members looked on, Nailor said he is “sick of you fucking sissies” and “went further by calling us bitches, queers, princess queens.” (Id. at 6.) Nailor then told one of the other inmates with Plaintiff to “go fucking cry and write a grievance bitch”. (Id.) Plaintiff then entered the prayer room, where Correctional Officer Meadow told Plaintiff that Nailor's comments were “uncalled for” and contacted Lieutenant Newman with Internal Affairs. (Id.) Newman interviewed Plaintiff. (Id., pg. 7.) Nailor then, however, wrote a disciplinary ticket against Plaintiff for “sexual misconduct and insolence, ” accusing Plaintiff of “flirting with him.” (Id.) Plaintiff believes Nailor's comments also may have been race-related, as she has not heard of him subjecting white transgender inmates to similar treatment. (Id., pg. 10-11.)

         Plaintiff submitted a grievance and “PREA report” regarding Nailor's behavior. (Id., pg. 13.) Plaintiff heard that Nailor was given 15 days off for his actions. (Id., pg. 3.) The disciplinary ticket against Plaintiff was dismissed. (Id. at 13.)

         Following the incident, Plaintiff was segregated in “Housing Unit 31” under less desirable circumstances than her prior cell placement. (Id. at 7, 13.) Her cell there was an “intake” cell with tighter restrictions on the use of phones, washers, showers, and the day room as compared to general population inmates. (Id.) And, instead of sharing a cell with only one other inmate, Plaintiff was housed with three other inmates, who were uncomfortable being housed with a transgender inmate. (Id.) Plaintiff believes that she was reassigned as retaliation for her complaint against Nailor. (Id., pg. 14.) Plaintiff does not believe there was a valid “peneological interest in security” to reassign her because unlike a typical PREA report that is made against another inmate, Plaintiff's complaint was instead made against a correctional officer. (Id.) Former Warden Enloe was made aware of the situation but failed to address it. (Id., pg. 13.) Plaintiff encountered Nailor again on November 18, 2016, when, as Plaintiff was entering the school building, she heard Nailor say “that's one of the fags right there”. (Id., pg. 14, 16.) Plaintiff did not report this incident for fear of being put back in “building 31”. (Id., pg. 14.)

         Since the incident in February 2016, Plaintiff has been fearful, unable to sleep, and has been experiencing nightmares and bed wetting. (Id., pg. 7.) She has started seeing a psychologist. (Id., pg. 12.) Her day-to-day activities are also restricted because she chooses to mostly stay in her cell out of fear of encountering Nailor. (Id., pg. 7, 11.)

         Plaintiff invokes 42 U.S.C. §§ 1981 and 1983, alleging that her rights to equal protection and to be free from unlawful discrimination and retaliation were violated. She also raises intentional infliction of emotional distress under Illinois law. She seeks compensatory, nominal and punitive damages, as well as injunctive relief “to stop harassing treatment” and “to train staff with dealing with transgenders.” (Id. at 8.)

         Currently before the Court are Plaintiff's second application for leave to proceed in forma pauperis, her complaint for initial review under 28 U.S.C. § 1915A, her motion for attorney representation, and her motion for service of process at government expense.

         Plaintiff's application for leave to proceed in forma pauperis demonstrates she cannot prepay the filing fee and is thus granted. Pursuant to 28 U.S.C. § 1915(b)(1), (2), the Court orders: (1) Plaintiff to immediately pay (and the facility having custody of him to automatically remit) $51.73 to the Clerk of Court for payment of the initial partial filing fee and (2) Plaintiff to pay (and the facility having custody of her to automatically remit) to the Clerk of Court twenty percent of the money she receives for each calendar month during which she receives $10.00 or more, until the $350 filing fee is paid in full. The Court directs the Clerk of Court to ensure that a copy of this order is mailed to each facility where Plaintiff is housed until the filing fee has been paid in full. All payments shall be sent to the Clerk of Court, United States District Court, 219 South Dearborn Street, Chicago, Illinois 60604, attn: Cashier's Desk, 20th Floor, and shall clearly identify Plaintiff's name and the case number assigned to this case.

         Under 28 U.S.C. §§ 1915(e)(2) and 1915A(a), the Court is required to screen pro se prisoners' complaints, including amendments, and dismiss the complaint, or any claims therein, if the Court determines that the complaint or claim is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. See Jones v. Bock, 549 U.S. 199, 214 (2007); Turley v. Rednour, 729 F.3d 645, 649 (7th Cir. 2013).

         Courts screen prisoner litigation claims in the same manner as ordinary Federal Rule of Civil Procedure 12(b)(6) motions to dismiss. See Maddox v. Love, 655 F.3d 709, 718 (7th Cir. 2011). A motion under Rule 12(b)(6) challenges the sufficiency of the complaint. See Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). Under Rule 8(a)(2), a complaint must include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The short and plain statement under Rule 8(a)(2) must “give the defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted). Under the federal notice pleading standards, a plaintiff's “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Id. Put differently, a “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).

         “In reviewing the sufficiency of a complaint under the plausibility standard, [courts] accept the well-pleaded facts in the complaint as true.” Alam v. Miller Brewing Co., 709 F.3d 662, 665-66 (7th Cir. 2013). Courts also construe pro se complaints liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam).

         Plaintiff's allegations implicate the Constitution under the First, Eighth, and Fourteenth Amendments, and she may proceed under § 1983. While mere sexually or gender-charged statements may alone be insufficient to violate the Constitution, see Beal v. Foster, 803 F.3d 356, 358 (7th Cir. 2015) (discussing DeWalt v. Carter, 224 F.3d 607, 612 (7th Cir. 2000)); see also DeWalt, 224 F.3d at 612 (finding that plaintiff's allegations of supervisor's “racially derogatory and sexually explicit language” were “properly dismissed” because, “[s]tanding alone, simple verbal harassment does not constitute cruel and unusual punishment, deprive a prisoner of a protected liberty interest or deny a prisoner equal protection of the laws”) (citations omitted); Scruggs v. Miller, No. 3:16-CV-050 JD, 2016 WL 495603, at *3 (Feb. 8, 2016) (holding that racially derogatory terms not likely to risk future harm to plaintiff did not state claim), name-calling that may subject the target inmate to harm, including sexual assault, from others, may implicate the Constitution. See Beal, 803 F.3d at 357-58; Dobbey v. Ill. Dep't of Corr., 574 F.3d 443, 445 (7th Cir. 2009); Benefield v. McDowall, 241 F.3d 1267, 1271 (10th Cir. 2001). Nailor's alleged comments, made in front of staff and inmates, arguably fall within the second class and implicate the Constitution both in this way and as a potential violation of Plaintiff's equal protection rights. See Mitchell v. Price, No. 11-CV-260-WMC, 2014 WL 6982280, at *8-13 (W.D. Wis. Dec. 10, ...


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