Doe v. Macleod

IN THE UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

SPRINGFIELD DIVISION

JANE DOE, )

)

Plaintiff, )

)

v. ) No. 3:18-cv-3191

)

RICHARD MACLEOD, et al., )

)

Defendants. )

OPINION

SUE E. MYERSCOUGH, U.S. District Judge.

This cause is before the Court on the Motion to Dismiss (d/e

77) filed by Defendants Dr. Jennifer McClellan and Dr. Keena Peek.

Because the Amended Complaint states a failure to protect claim,

the Motion is DENIED.

I. JURISDICTION

This Court has federal question jurisdiction over Count I

because that Count alleges a claim arising under the Eighth

Amendment to the United States Constitution and brought

pursuant to 42 U.S.C. § 1983. See 28 U.S.C. § 1331. Venue is

proper because the events or omissions giving rise to the claim

occurred within the District. 28 U.S.C. § 1391(b)(1), (b)(2).

II. FACTS

In August 2018, Plaintiff filed a Complaint (d/e 1) pursuant to

42 U.S.C. § 1983 against Richard Macleod, a Correctional

Counselor II employed by IDOC; Todd Sexton, a supervisory officer

at Logan and a member of the prison’s Internal Affairs Department;

and Margaret Burke, the Warden of Logan. On May 20, 2019,

Plaintiff filed an Amended Complaint (d/e 37) adding Defendants

Dr. Jennifer McClellan and Dr. Keena Peek along with 20 other

defendants and additional allegations that sexual assaults and

sexual harassment are widespread at Logan and other IDOC

facilities. See d/e 37, ¶¶ 46-50.

The following facts come from the Amended Complaint and are

accepted as true at the motion to dismiss stage. Olson v.

Champaign Cty., Ill., 784 F.3d 1093, 1095 (7th Cir. 2015); Tamayo

v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008).

Dr. Jennifer McClellan and Dr. Keena Peek were members of

the Prison Rape Elimination Act (“PREA”) incident review team at

Logan Correctional Center where they were responsible for

reviewing investigations of sexual assault and evaluating and

recommending policy changes to address issues of sexual assault at

Logan. The two are being sued for their role on the incident review

team. Jane Doe was a prisoner with the Illinois Department of

Corrections (IDOC) from March 2015 to July 2018. Jane Doe was

housed at Logan Correctional Facility upon her admission until

August 2017.

While she was incarcerated, a court order was in effect that

gave Jane Doe phone calls with her minor daughter once a week.

Jane Doe was placed in segregation for 18 days during which time

she could not make phone calls. On August 4, 2016, after

segregation, Jane Doe was assigned to Housing Unit 7. Defendant

Richard Macleod acted as counselor for that housing unit. Jane

Doe had to work with Macleod to reinstate her phone calls with her

daughter and to receive a work assignment. Macleod interviewed

Jane Doe in a private room without anyone else present. Macleod

told Jane Doe she was pretty and asked if she would tell anyone if

he had her come to his office to help him on the weekends,

acknowledging that no other staff would be there at that time.

Macleod knew how important the phone calls with her daughter

were to Jane Doe. A few days later, Macleod called Jane Doe to his

office so she could use his phone to call her daughter. After the

call, Macleod kissed Jane Doe. On a weekly basis, Macleod called

Jane Doe to his office for the phone calls to her daughter, at which

time he would sexually assault her and subject her to sexual

harassment. On two occasions, he coerced her to have non-

consensual sexual intercourse with him and on two other occasions

he coerced her to perform non-consensual oral sex on him. He

would also regularly expose himself to Jane Doe and make sexual

comments while she was on the phone with her daughter.

In November 2016, Jane Doe was transferred to Housing Unit

4 in Logan Correctional Center. Jane Doe alleges that she should

have been assigned to a new counselor in Housing Unit 4.

However, Macleod remained as her counselor. Macleod continued

to abuse Jane Doe until May 3, 2017, when she was finally

assigned to a new counselor.

Jane Doe did not report Macleod’s misconduct because he

threatened that if she told, she would “get a year across the board,”

which meant she would spend a full year in segregation and an

additional year at IDOC. Additionally, Macleod told Jane Doe that

Defendant Todd Sexton, a lieutenant who worked for internal

affairs, was his friend and gave him advice about how to avoid

punishment if his sexual misconduct was discovered. Jane Doe

believed that Macleod would not be punished if she reported his

misconduct. Jane Doe alleges that Sexton was aware of Macleod’s

misconduct since September 2016. On or about August 4, 2017,

Sexton interviewed Jane Doe regarding Macleod. Sexton said he

received information from an unknown source. At first, Jane Doe

did not reveal any information for fear of retaliation, but eventually

Jane Doe told Sexton about Macleod’s abuse.

Immediately thereafter, Jane Doe was transferred to Decatur

Correctional Center. Jane Doe did not consent to the transfer as

she did not want to be transferred. Jane Doe was unable to have

her weekly phone call with her daughter for three weeks, she was

deprived of the opportunity to complete a cosmetology program in

which she was enrolled at Logan, and, she lost her job on the

garden crew. Jane Doe alleges that the transfer was carried out by

Sexton, Defendant Margaret Burke, and “other as-yet-unidentified

defendants” in retaliation for Jane Doe’s complaint.

Jane Doe alleges that Macleod similarly abused other women

at Logan. The Illinois State Police investigated Macleod’s sexual

assault of Jane Doe. During that investigation, several other

inmates described having sexual encounters with Macleod.

Defendants, including Dr. Jennifer McClellan and Dr. Keena Peek,

“knew as early as February 2017 that Macleod was engaging in a

pattern of abuse, knew of a substantial likelihood that [he] was

sexually abusing prisoners at Logan, and/or failed to take

reasonable steps to prevent the abuse from continuing. As a result

of Defendants’ indifference and failure to intervene, Ms. Doe’s

constitutional rights were violated.” See d/e 37, ¶ 41. Jane Doe

alleges that she suffered and continues to suffer severe emotional

distress, including humiliation, depression, rage, anxiety, panic

attacks, insomnia, and post-traumatic stress.

In her Amended Complaint, Jane Doe alleges two counts: one

for failure to protect in violation of the Eighth Amendment and one

for retaliation. Count I alleges that all Defendants, including Dr.

Jennifer McClellan and Dr. Keena Peek, violated her constitutional

right to be free from cruel and unusual punishment pursuant to the

Eighth Amendment by failing to protect her when they knew her

rights were being violated and were on notice of a substantial risk of

harm to Plaintiff. Plaintiff further contends that Defendants had a

realistic opportunity to intervene to prevent or stop the misconduct,

but they consciously disregarded that opportunity.

In support of Count I, Jane Doe alleges that Logan

Correctional Center and other IDOC facilities maintain a “zero

tolerance” policy against sexual assault. However, “a large number

of inmates at Logan and other IDOC facilities have been victims [of]

sexual assault and harassment, including numerous reported

instances of staff-on-inmate sexual assault and harassment.” See

d/e 37, ¶ 46.

Jane Doe cites numerous statistics relating to reported sexual

assaults or harassment throughout all of IDOC. See d/e 37, ¶ 47.

She also cites several statistics specifically related to Logan

Correctional Center. See d/e 37, ¶¶ 48-50. For example, in 2016,

145 sexual assault or harassment allegations at Logan were

reported, of which 91 were inmate-on-inmate reports and 54 were

staff-on-inmate reports. Of the 54 reported instances of staff-on-

inmate sexual abuse or harassment, 11 were followed by

investigations that were insufficient to develop the evidence needed

to determine whether or not the allegations occurred. See d/e 37, ¶

48. Additionally, Jane Doe lists seven different investigations of the

Illinois State Police related to sexual assaults or harassment at

Logan. See d/e 37, ¶ 49. These reports are detailed in the

Amended Complaint. Five out of seven of the ISP investigations are

prior to or during the time period of alleged abuse. See d/e 37, ¶

49.

Based on this information, Jane Doe contends that

Defendants, including Dr. Jennifer McClellan and Dr. Keena Peek,

were aware that a systemic sexual assault problem existed at Logan

and were aware of policies and practices that permitted this

misconduct to occur. Each of the Defendants allegedly knew of a

substantial risk of harm to the female prisoners at Logan, like Jane

Doe, but they failed to take reasonable steps to mitigate the risk of

harm, failing to adequately investigate, supervise, control, and

discipline IDOC employees. Jane Doe asserts that the actions of

Defendants were objectively unreasonable and intentionally

disregarded Jane Doe’s constitutional rights, and, as a result, Jane

Doe suffered harm.

In Count II, Jane Doe alleges that Defendants Sexton, Burke,

and “other as-yet-unidentified defendants” retaliated against her for

exercising her First Amendment rights. Count II is not against

Defendants Dr. Jennifer McClellan and Dr. Keena Peek. Therefore,

the only claim against Dr. Jennifer McClellan and Dr. Keena Peek is

one for failure to protect.

III. LEGAL STANDARD

A motion under Rule 12(b)(6) challenges the sufficiency of the

complaint. Christensen v. Cty. Of Boone, Ill., 483 F.3d 454, 458

(7th Cir. 2007). To state a claim for relief, a plaintiff need only

provide a short and plain statement of the claim showing she is

entitled to relief and giving the defendant fair notice of the claims.

Tamayo, 526 F.3d at 1081. Defendants rely on Benson v. Cady,

which the Seventh Circuit has rejected on the premise that it is

inconsistent with notice pleading. 761 F.2d 335 (7th Cir. 1985)

(holding that a Plaintiff must provide “sufficient factual matter to

outline the elements of his cause of action or claim, proof of which

is essential to his recovery.”); see also Henderson v. Wilcoxen, 802

F.3d 930, 933 (7th Cir. 2015); Walker v. Thompson, 288 F.3d 1005,

1008–09 (7th Cir. 2002); Higgs v. Carver 286 F.3d 437, 439 (7th

Cir. 2002).

When considering a motion to dismiss under Rule 12(b)(6), the

Court construes the complaint in the light most favorable to the

plaintiff, accepting all well-pleaded allegations as true and

construing all reasonable inferences in plaintiff’s favor. Id.

However, the complaint must set forth facts that plausibly

demonstrate a claim for relief. Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 547 (2007). A plausible claim is one that alleges factual

content from which the Court can reasonably infer that the

defendant is liable for the misconduct alleged. Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009). Merely reciting the elements of a cause

of action or supporting claims with conclusory statements is

insufficient to state a cause of action. Id.

IV. ANALYSIS

Defendants Dr. Jennifer McClellan and Dr. Keena Peek filed a

Motion to Dismiss pursuant to Federal Rule of Civil Procedure

12(b)(6) arguing that Plaintiff has failed to state a claim for relief

under the Eighth Amendment. See d/e 77.

To state a claim under 42 U.S.C. § 1983, a plaintiff must

allege that a person acting under color of title deprived her of a

federal right, privilege, or immunity. 42 U.S.C. § 1983; Brown v.

Budz, 398 F.3d 904, 908 (7th Cir. 2005). State officials must “take

reasonable measures to guarantee the safety of the inmates.”

Hudson v. Palmer, 468 U.S. 517, 526–27 (1984). For cases

involving risk of harm to an inmate, a “deliberate indifference”

standard is used. Farmer v. Brennan, 511 U.S. 825, 834 (1994).

Under this standard, a state official is liable only if he knows an

inmate faces “a substantial risk of serious harm and disregards that

risk by failing to take reasonable measures to abate it.” Id. at 847.

“A claim that a prison official was deliberately indifferent to

such a risk has both an objective and a subjective component.”

Gevas v. McLaughlin, 798 F.3d 475, 480 (7th Cir. 2015); see also

Farmer, 511 U.S. at 834. “First, the harm to which the prisoner

was exposed must be an objectively serious one.” Gevas, 798 F.3d

at 480. Second, under “the subjective prong of the deliberate

indifference claim,” the “official must have actual, and not merely

constructive, knowledge of the risk in order to be held liable;

specifically, he ‘must both be aware of facts from which the

inference could be drawn that a substantial risk of serious harm

exists, and he must also draw that inference.’” Id. (quoting Farmer,

511 U.S. at 837).

“Although this inquiry focuses on an official’s subjective

knowledge, a prisoner need not present direct evidence of the

official’s state of mind: ‘Whether a prison official had the requisite

knowledge of a substantial risk is a question of fact subject to

demonstration in the usual ways, including inference from

circumstantial evidence . . . .’” Id. quoting Farmer, 511 U.S. at

842). A plaintiff need not show that a prison official acted or failed

to act believing that the harm would occur to the plaintiff. It is

sufficient if the official acted or failed to act despite knowledge of a

substantial risk of serious harm. Farmer, 511 U.S. at 842.

Here, Dr. Jennifer McClellan and Dr. Keena Peek were on the

PREA incident review team at Logan. Plaintiff alleges that Dr.

Jennifer McClellan and Dr. Keena Peek knew as early as February

2017 that Macleod was engaging in a pattern of abuse and they

knew of a substantial likelihood that Macleod was sexually abusing

prisoners at Logan and/or failed to prevent the abuse from

continuing. Plaintiff is not required to prove her allegations at this

point or provide more factual specificity.

At this stage, Plaintiff is only required to plead a short and

plain statement of the claim showing she is entitled to relief and

giving the defendant fair notice of the claims. Tamayo, 526 F.3d at

1081. Plaintiff’s Amended Complaint does that.

Defendants argue that Plaintiff “pleaded herself out of court”

by pleading the statistical information and specific examples in her

Amended Complaint because the sexual abuse allegations were not

substantiated and some accounts occurred after the alleged abuse.

A plaintiff may “plead itself out of court by pleading facts that

establish an impenetrable defense to its claims.” Tamayo, 526 F.3d

at 1086. Defendants contend that Plaintiff cannot prove notice of a

substantial risk of serious harm if the investigations did not

substantiate the allegations and other instances of sexual abuse

occurred after Plaintiff was allegedly abused. Insufficient

information to develop evidence for an investigation does not equate

to the accusations being unfounded. Additionally, some of the

investigations contained in Plaintiff’s Amended Complaint occurred

prior to the end of Plaintiff’s alleged abuse. That some

investigations were inconclusive and after the alleged abuse does

not establish an “impenetrable defense” to Jane Doe’s Eighth

Amendment claim.

Defendants also argue that the claim fails because a failure to

enact the best policy does not cause constitutional liability.

However, Plaintiff’s Amended Complaint alleges more than a failure

to enact the best policy. Plaintiff contends that Logan already had a

“zero tolerance” policy against sexual assault and that by

disregarding a substantial risk of sexual abuse and harassment,

Defendants failed to enforce that policy. Therefore, Plaintiff has

sufficiently stated a § 1983 claim for failure to protect in violation of

the Eighth Amendment.

CONCLUSION

For the reasons stated, Defendants Dr. Jennifer McClellan’s

and Dr. Keena Peek’s Motion to Dismiss (d/e 77) is DENIED.

ENTERED: February 20, 2020

FOR THE COURT:

s/Sue E. Myerscough___

SUE E. MYERSCOUGH

UNITED STATES DISTRICT JUDGE