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Kellerr v. Walton

United States District Court, S.D. Illinois

November 28, 2017

CHARLES DERRICK KELLER, Plaintiff,
v.
J.S. WALTON, et al., Defendants.

          MEMORANDUM & ORDER

          J. PHIL GILBERT, DISTRICT JUDGE

         This matter comes before the Court on the Report and Recommendation (“Report”) (Doc. 66) of Magistrate Judge Donald G. Wilkerson recommending that the Court deny both the Motion to Dismiss Count I of Plaintiff's Complaint filed by Defendants Walton, Patterson, J. Byram, S. Byram, and Behle (Doc. 39), and the Motion to Dismiss Count III of Plaintiff's Complaint filed by Defendants J. Byram, Morris, Mowery, Cook, Bufford, Jr., Snyder, Will, Tanner, Waters, Richey, Hicks, Hampton, Daun, May, Thompson, and Richardson (Doc. 40). The Government has filed an objection to the Report on behalf of the defendants (Doc. 67) and the plaintiff has responded to the objection (Doc. 68).

         I. BACKGROUND

         Charles Derrick Keller is serving a 180-month sentence for possessing a firearm as a convicted felon. In 2016, he brought this suit pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), alleging that a number of parties violated his constitutional rights while he was incarcerated at United States Penitentiary Marion (USP-Marion). The claims center around Keller's alleged psychiatric condition, which he asserts prison officials inflamed by placing him in unacceptable situations at the prison. Specifically, Keller maintains that prison officials (1) assigned him to a three-man cell when they knew Keller required a single-man cell because of his condition, and (2) confined Keller in a “boxcar” cell-rife with unsanitary and unsafe conditions-in retaliation for Keller's grievances with the prison. The Court screened Keller's complaint pursuant to 28 U.S.C. § 1915A and allowed the following claims to proceed:

Count 1: Eighth Amendment claim against Defendants Walton, S. Byram, J. Byram, Behle, and Patterson, for deliberate indifference to Plaintiff's serious mental health condition in that they housed him under conditions that worsened his psychiatric symptoms;
Count 2: First Amendment retaliation claim against Defendants Walton, S. Byram, Behle, J. Byram, Patterson, and Mowery, who took adverse actions against Plaintiff (a retaliatory transfer, false disciplinary report, and placement in the boxcar cell) because he filed grievances over his conditions of confinement;
Count 3: Eighth Amendment claim against Defendants J. Byram, Morrison, Mowery, Cook, Bufford, Bushnell, Snyder, Will, Tanner, Morris, Waters, Richey, Hicks, Hampton, Dawn, May, Thompson, Richardson, Trovillion, Pass, and other Jane/John Doe SHU Officers, who kept Plaintiff confined in unsanitary and unsafe conditions in the boxcar cell for seven days, and/or failed to mitigate those conditions after learning of them.

         Now, the Government has filed two motions to dismiss on behalf of the defendants seeking to dismiss Counts 1 and 3 pursuant to Federal Rule of Civil Procedure 12(b)(6). First, the Government argues that the Court should dismiss Count 1 because (1) qualified immunity insulates the defendants from suit, and (2) the complaint fails to allege a violation of the Eighth Amendment. Next, the Government argues that the Court should dismiss Count 3 because Keller has not exhausted his administrative remedies.

         Magistrate Judge Wilkerson issued a report and recommendation (“Report”) that recommends this Court deny both motions. (Doc. 66.) With regards to the Count I arguments, the Report first explains that even though this Court has the discretion to change its decision from the initial screening order, such a reversal is not warranted here. Second, the Report spells out that qualified immunity does not apply because Keller has sufficiently alleged the elements of an Eighth Amendment deliberate indifference claim: a claim which abrogates qualified immunity. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (qualified immunity does not protect a government official if their conduct violates “clearly established statutory or constitutional rights of which a reasonable person would have known”); Carlson v. Green, 446 U.S. 14 (1980) (allowing a Bivens claim predicated on an Eighth Amendment violation to proceed). With regards to the administrative remedies argument, the Report outlines that Keller exhausted his administrative remedies. Even though Keller was tardy in filing his BP-9 form, he had a valid reason for the delay pursuant to 28 C.F.R. § 542.14(a) because he was waiting for the institution to respond to his informal resolution request. The Government has filed an assertive objection to the Report on the Count I issues, but the objection does not mention the exhaustion of remedies matter. (Doc. 67.)

         II. LEGAL STANDARDS

         A. Standard of Review

         The Court may accept, reject, or modify-in whole or in part-the findings or recommendations of the magistrate judge in a report and recommendation. Fed.R.Civ.P. 72(b)(3). The Court must review de novo the portions of the report to which objections are made. Id. “If no objection or only partial objection is made, the district court judge reviews those unobjected portions for clear error.” Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999).

         B. Federal Rule of Civil Procedure 12(b)(6)

         When reviewing a Rule 12(b)(6) motion to dismiss, the Court accepts as true all allegations in the complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To avoid dismissal under Rule 12(b)(6) for failure to state a claim, a complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). This requirement is satisfied if the complaint: (1) describes the claim in sufficient detail to give the defendant fair notice of what the claim is and the grounds upon which it rests and (2) plausibly suggests that the plaintiff has a right to relief above a speculative level. Bell Atl., 550 U.S. at 555; see AshcroftIqbal, 556 U.S. 662, 678 (2009); EEOCConcentra Health Servs., 496 F.3d 773, 776 (7th Cir. 2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 ...


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