United States District Court, C.D. Illinois
MERIT REVIEW - AMENDED COMPLAINT
MICHAEL M. MIHM UNITED STATES DISTRICT JUDGE
currently at the Illinois River Correctional Center and
proceeding pro se, files an amended complaint under
42 U.S.C. § 1983, alleging retaliation and violations of
equal protection at the Pontiac Correctional Center
(“Pontiac”). The case is before the Court for a
merit review pursuant to 28 U.S.C. § 1915A. In reviewing
the Complaint, the Court accepts the factual allegations as
true, liberally construing them in Plaintiff's favor.
Turley v. Rednour, 729 F.3d 645, 649-51 (7th Cir.
2013). However, conclusory statements and labels are
insufficient. Enough facts must be provided to “state a
claim for relief that is plausible on its face.”
Alexander v. United States, 721 F.3d 418, 422 (7th
Cir. 2013)(citation and internal quotation marks omitted).
While the pleading standard does not require “detailed
factual allegations”, it requires “more than an
accusation.” Wilson v. Ryker, 451 Fed.Appx.
588, 589 (7th Cir. 2011) quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009).
October 31, 2018, Plaintiff's new cellmate, Martinez,
made sexual advances to him, offering him “commissary
and phone time” in exchange for a sexual act. Plaintiff
complained to Defendant Officer Hart, asking that either he
or his cellmate be moved. In the next few weeks, Plaintiff
reiterated this request both to Defendant Hart and Defendant
Flexer, telling them that Martinez was making threatening
November 11, 2018, Martinez began masturbating, threatening
to force himself on Plaintiff. Plaintiff complained to
Defendant Hart who ordered him back to his cell. Plaintiff
threatened to go to a Lieutenant and to write a grievance on
Defendant Hart, but returned to his cell. While in the cell,
he and Martinez admittedly began arguing. Defendant Hart
claims to have overheard Plaintiff threatening Martinez that
he would “kick his ass” if Martinez was not moved
from the cell.
Hart thereafter took Plaintiff before Lieutenant Kransican,
not a party. There, Plaintiff was informed that Defendant was
writing him a disciplinary ticket for intimidation or
threats. At that point, Plaintiff complained to Lt. Kransican
that Defendants Hart and Flexer had failed to take action in
response to his complaints about Martinez. Plaintiff denies
having threatened Martinez and claims that the disciplinary
ticket was written in retaliation for his complaints about
Defendants. He asserts that on November 21, 2018, the ticket
written by Defendant Hart was dismissed. Two days after the
meeting with Lt. Kransican, inmate Martinez was assigned to a
alleges against Defendant Flexer that on November 16, 2018,
Defendant wrote him a disciplinary report falsely claiming
that he had a peanut butter jar and bowl which were not
stowed in his property box. Officer Moody, not a party,
served the tickets on Plaintiff and allegedly told him he was
on Defendant Flexer's “shit list.” Plaintiff
claims, however, that he was not formerly charged, there was
no hearing, and there is no record of this ticket in his
disciplinary history. Plaintiff believes, therefore, that the
disciplinary charges were “fake” and used merely
to stress him out.
that same day, Defendant Flexer informed Plaintiff that he
was to be interviewed by Internal Affairs in response to a
PREA report he had filed against inmate Martinez. Plaintiff
claims that prior to taking him to the interview, Defendant
Flexer patted him down in an aggressive manner, causing his
pants to sag. Defendant then wrote Plaintiff a disciplinary
ticket for insolence and a rules violation in relation to the
sagging pants. Defendant Flexer also allegedly yelled out
“Hughes is going to IA to snitch on Martinez.”
Plaintiff alleges that this placed his life in danger but
does not claim he suffered threats or injury as a result.
Plaintiff alleges that Defendant Flexer's actions were in
retaliation for Plaintiff “telling on” Martinez
and complaining to Lt. Kransican about Hart and Flexer.
November 17, 2018, Plaintiff returned from recreation to find
that the cell had been searched and his, but not his
cellmate's property, was scattered about the room.
Plaintiff had various items of personal property which were
confiscated as contraband, though later returned to him.
Plaintiff claims that the search of his cell was done by
Defendant Hart and was motivated by retaliation. On November
18, 2018, Plaintiff reported Defendant Hart's alleged
retaliation to Lt. Kransican, who moved Plaintiff to a
Plaintiff fails to state a claim that Defendant Hart filed a
false disciplinary ticket on November 11, 2018 in retaliation
for Plaintiff's complaints to Lt. Kransican. This is so
as Defendant Hart asserted the disciplinary charges before
Plaintiff had complained about him to Lt. Kransican. While
Plaintiff had, earlier, threatened to file a grievance
against Defendant Hart, a mere threat is not enough for
retaliation. See Parnell v. Lashbrook, No. 16- 1144,
2017 WL 2876526, at *8 (S.D. Ill. July 6, 2017) citing
Bridges v. Gilbert, 557 F.3d 541 (7th Cir. 2009).
does, however, state a colorable retaliation claim for
Defendant Hart shaking down his cell and confiscating
personal property which was subsequently returned to him. He
also states retaliation claim for Defendant Flexer's
identifying him as a snitch and writing the ticket alleging
insolence and a violation of the dress code, which occurred
after Plaintiff's complaints to Lt. Kransican.
Plaintiff also alleged an earlier ticket asserting that he
had failed to stow items in his property box, charges were
never filed and Plaintiff was not disciplined. This is not
enough to state a retaliation claim. See Bridges,
557 F.3d at 552 (to effectively allege retaliation, plaintiff
must allege that he experienced an adverse action that would
likely deter such protected activity in the future).
Plaintiff might otherwise allege a failure to protect claim
against Defendants Hart and Flexer, he does not allege any
physical injury which resulted from his placement with inmate
Martinez. Wright v. Miller, 561 Fed.Appx. 551,
555-56 (7th Cir. 2014). “Under the Prison Litigation
Reform Act, absent an accompanying physical injury, a court
may not award compensatory damages for nonphysical harm, such
as fear of attack.”
also alleges that Defendants violated his rights to Equal
Protection without pleading any facts to establish that he
was treated differently from other similarly situated
individuals due to his race, or that he was arbitrarily
singled out for unfair treatment. Abcarian v.
McDonald, 617 F.3d 931, 938 (7th Cir. 2010). This claim
is, again, DISMISSED.