Arroy v. Clark

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

MARCO A. ARROY, )

Plaintiff, )

)

vs. ) Case No. 23-1129

)

ROB JEFFRIES, et. al., )

Defendants )

MERIT REVIEW ORDER

JAMES E. SHADID, U.S. District Judge:

This cause is before the Court for merit review of the Plaintiff’s complaint. The

Court is required by 28 U.S.C. §1915A to “screen” the Plaintiff’s complaint, and through

such process to identify and dismiss any legally insufficient claim, or the entire action if

warranted. A claim is legally insufficient if it “(1) is frivolous, malicious, or fails to state

a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant

who is immune from such relief.” 28 U.S.C. §1915A.

Plaintiff claims his constitutional rights were violated at Illinois River

Correctional Center when officers failed to protect him from an inmate assault. Plaintiff

has listed 16 Defendants including Illinois Department of Corrections (IDOC) Director

Rob Jeffries, Warden T. Clark, Warden Boerdner, Major Smith, Major Thompson, Major

Cannon, Major English, Major Bottrell, Chief Administrative Officer Victoria Ledge,

Lieutenant Johnson, Officer Adams, Grievance Officer Lohnes, Dacia Fouts, Unknown

Sergeant, Unknown Correctional Officer, and K. Dennis. Plaintiff says he is suing each

Defendant in his or her individual capacity.

On May 2, 2022, Plaintiff told Lieutenant Jump that Inmate R. had threated to

attack and injure Plaintiff. Plaintiff has not listed this Lieutenant as a Defendant.

Lieutenant Jump advised Plaintiff if he fought back, he would be charged with fighting.

Plaintiff notes Inmate R is younger, bigger, and stronger. Plaintiff advised the

Lieutenant that he was in danger, but the officer took no immediate action.

However, Plaintiff admits Lieutenant Jump did write an incident report on May

2, 2022 “concerning the threat to (plaintiff’s) safety and wellbeing.” (Comp., p. 6).

Plaintiff also submitted an emergency grievance on May 2, 2022 repeating Inmate

R’s threat and Plaintiff’s concern for his safety. Plaintiff claims Defendants Clark,

Boerdner, Smith, Thompson, Cannon, English, Bottrell, Johnson, Adams, and Lohnes

“had access” to both the grievance and incident report, but none of them took action to

protect him. (Comp, p. 6). Plaintiff states an unspecified Defendant found his grievance

did not meet the standard for emergency consideration.

Two days after Plaintiff spoke with Lieutenant Jump on May 4, 2022, Inmate R.

began shouting at Plaintiff “in a threatening and aggressive manner” in “dietary”

(Comp., p. 8). Plaintiff claims the unknown Sergeant and Correctional Officers could

hear the incident. Plaintiff says Inmate R’s conduct violated several disciplinary rules at

the facility, but no officer took any action to remove Inmate R from dietary or otherwise

protect Plaintiff.

As Plaintiff was leaving dietary, Inmate R. stood up, walked past several staff

members, and assaulted Plaintiff. The inmate punched Plaintiff repeatedly in the

mouth, lip, and chin. Plaintiff was “immediately” in “severe pain, bleeding profusely,

lightheaded, dizzy.” (Comp., p. 10).

Plaintiff was transported to an outside hospital where he received stiches and

other medical care. Plaintiff lost four teeth due to the assault.

The Eighth Amendment imposes a duty on prison officials “to take reasonable

measures to guarantee the safety of inmates” and to “protect prisoners from violence at

the hands of other prisoners.” Farmer v. Brennan, 511 U.S. 825, 832-33 (1994). However, a

failure-to-protect claim cannot be predicated “merely on knowledge of general risks of

violence in a detention facility.” Brown v. Budz, 398 F.3d 904, 913 (7th Cir. 2005).

Instead, a prisoner plaintiff must “allege facts sufficient to show ‘that the defendants

had actual knowledge of an impending harm easily preventable, so that a conscious,

culpable refusal to prevent the harm can be inferred from the defendant's failure to

prevent it.’” Santiago v. Walls, 599 F.3d 749, 756 (7th Cir. 2010), quoting Lewis v. Richards,

107 F.3d 549, 553 (7th Cir. 1997). In other words, a plaintiff must allege Defendants

were deliberately indifferent to his health and safety. Farmer, 511 U.S. at 832-33.

In this case, Plaintiff says the Defendants knew he faced a substantial risk of

injury due to his verbal report to Lieutenant Jump, his May 2, 2022 emergency

grievance, Lieutenant Jump’s incident report, and Inmate R’s conduct in the dietary unit

prior to the assault. Nonetheless, the Defendants took any action to protect Plaintiff.

Plaintiff has adequately alleged Defendants Clark, Boerdner, Smith, Thompson,

Cannon, English, Bottrell, Johnson, Adams, Lohnes, Unknown Sergeant, and Unknown

Correctional Officer failed to protect him from an assault. The Court will also add

Lieutenant Jump as a Defendant since Plaintiff alleges the officer took no immediate

action to protect Plaintiff or separate him from Inmate R. beyond writing an incident

report.

Plaintiff is also advised to establish liability, he must demonstrate each

“defendant was personally responsible for that violation.” Rasho v. Elyea, 856 F.3d 469,

478 (7th Cir. 2017). “A defendant will be deemed to have sufficient personal

responsibility if he directed the conduct causing the constitutional violation, or if it

occurred with his knowledge or consent.” Sanville v. McCaughtry, 266 F.3d 724, 740(7th

Cir. 2001)(internal quotation marks omitted). “While the defendant need not have

participated directly in the deprivation of the plaintiff's constitutional right to be

held liable, he or she must nonetheless have known about the conduct, facilitated it,

approved it, condoned it, or turned a blind eye for fear of what they might see.” Rasho,

856 F.3d at 478 (internal quotation marks and citations omitted).

Therefore, Plaintiff must be able to demonstrate the listed Defendants not only

had “access” to his grievance and/or the incident report, but actually knew about the

contents and the specific threat to Plaintiff. (Comp, p. 6). In addition, Plaintiff cannot

sue every officer who was in dietary on the specific date and time, but only those who

heard Inmate R. threaten Plaintiff. Therefore, Plaintiff should use the discovery process

to clarify which Defendants were personally involved in his claims.

Plaintiff next alleges he spoke with some Defendants after the assault, but they

failed to take any action. For instance, Plaintiff says he met with Defendant Dacia

Fouts who he describes as IDOC’s “Legal Department Representative.” (Comp, p 14).

Plaintiff stated he was a non-violent offender who was on minimum security status, and

he should not be at Illinois River Correctional Center. Plaintiff asked for his immediate

transfer. The two then discussed a “Keep Separate From Order” used to separate

inmates who pose a danger to each other. (Comp, p. 15). Plaintiff says Defendant Fouts

“failed to remedy the wrong/failed to act [or] was so grossly negligent in managing

subordinates who caused the unlawful event.” (Comp, p. 15).

Plaintiff also wrote a letter to IDOC Director Jeffries on or about May 17, 2022

and provided a copy of his original emergency grievance. The Defendant did not

respond.

On June 17, 2022, Plaintiff then filed another grievance about the “negligence”

which lead to his assault on June 17, 2022. (Comp, p. 17). Plaintiff spoke with

Defendant Dennis and sent a letter to Defendant Clark about the grievance. Plaintiff

says Defendant Dennis intentionally delayed addressing his grievance.

Plaintiff has failed to articulate any additional claims. A Defendant cannot be

held responsible for a failure to protect claim when they were not informed of the

problem until after the assault occurred. See i.e. Santiago, 599 F.3d at 756 (plaintiff must

allege defendants have knowledge of “an impending harm…”)(emphasis added).

In addition, Plaintiff does not have a constitutional right to a transfer to the

facility of his choice. See i.e.Olim v. Wakinekona, 461 U.S. 238, 245 (1983)(Inmates have no

justifiable expectation to be incarcerated in any particular prison); Johnson v. Barry, 815

F.2d 1119, 1121 (7th Cir. 1987)(plaintiff had no protected expectation to either stay at his

facility or avoid transfer to a facility with more severe rules); Robertson v. Jeffreys, 2023

WL 2777933, at *1 (C.D.Ill. April 4, 2023)( no constitutional right to transfer); Jackson v.

Brookhart, 2021 WL 1146984, at *3 (S.D. Ill. March 25, 2021)(“there is no constitutional

right for a prisoner to be housed in a particular institution or placement.”).

Plaintiff also has failed to state a claim based on a failure to properly respond to

his grievance. See Kervin v. Barnes, 787 F.3d 833, 835 (7th Cir. 2015)(“the inadequacies of

the grievance procedure itself, as distinct from its consequences, cannot form the basis

for a constitutional claim.”); Owens v. Hinsley, 635 F.3d 950, 953 (7th Cir. 2011)(“Prison

grievance procedures are not mandated by the First Amendment and do not by their

very existence create interests protected by the Due Process Clause, and so the alleged

mishandling of (plaintiff’s) grievances by persons who otherwise did not cause or

participate in the underlying conduct states no claim.”).

In addition, simply sending a letter to the Warden “does not make a prison

official liable for the alleged infraction.” Norington v. Daniels, No. 11-282, 2011 WL

5101943, at *2–3 (N.D. Ind. Oct. 25, 2011); see also Diaz v. McBride, 1994 WL 750707, at *4

(N.D. Ind. Nov. 30,1994) (a plaintiff cannot establish personal involvement and subject a

prison official to liability under § 1983, merely by sending the official various letters or

grievances complaining about the actions or conduct of subordinates); Thomas v. Knight,

196 F. App'x 424, 429 (7th Cir. 2006) (explaining that a warden does not incur § 1983

liability just by participating in the grievance process).

Plaintiff also mentions a claim pursuant to the Federal Tort Claims Act (FTCA)

but this is a statute which allows a federal inmate to sue for injuries sustained in a

federal penitentiary. See 28 U.S.C. § 1346(b)(1). In addition, “negligence, gross

negligence, or even recklessness as the term is used in tort cases is not enough” to

establish an Eighth Amendment violation. Hildreth v. Butler, 960 F.3d 420, 425-26 (7th

Cir. 2020).

Finally, Plaintiff has filed a motion for appointment of counsel. [5]. Plaintiff has

no constitutional right to the appointment of counsel. In addition, the Court cannot

require an attorney to accept pro bono appointment in a civil case. The most the Court

can do is ask for volunteer counsel. See Jackson v. County of McLean, 953 F.2d 1070, 1071

(7th Cir. 1992).

In considering Plaintiff’s motion, the Court must ask two questions: “(1) has the

indigent plaintiff made a reasonable attempt to obtain counsel or been effectively

precluded from doing so; and if so, (2) given the difficulty of the case, does the plaintiff

appear competent to litigate it himself?” Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007),

citing Farmer v. Haas, 990 F.2d 319, 322 (7th Cir. 1993). Plaintiff has demonstrated a

reasonable attempt to find counsel on his own.

However, Plaintiff’s failure to protect claim is not complex. Plaintiff has

demonstrated he is capable of describing his efforts to warn Defendants about the threat

to his safety and the responses received. Plaintiff has cited to relevant case law in his

complaint.

In addition, once the Defendants are served, the Court will enter a scheduling

order which provided information to assist Plaintiff with the discovery process and

requires the initial exchange of relevant information. The motion is therefore denied

[5].

IT IS THEREFORE ORDERED:

1) Pursuant to its merit review of the complaint under 28 U.S.C. § 1915A, the

Court finds the Plaintiff alleges Defendants Lieutenant Jump, Clark, Boerdner,

Smith, Thompson, Cannon, English, Bottrell, Johnson, Adams, Lohnes, Unknown

Sergeant, and Unknown Correctional Officer violated his Eighth Amendment

rights when they failed to protect Plaintiff from an inmate assault on May 4,

2022, at Illinois River Correctional Center. The claim is stated against the

Defendants in their individual capacities only. Any additional claims shall not be

included in the case, except at the Court’s discretion on motion by a party for

good cause shown or pursuant to Federal Rule of Civil Procedure 15.

2) This case is now in the process of service. Plaintiff is advised to wait until

counsel has appeared for Defendants before filing any motions, in order to give

Defendants notice and an opportunity to respond to those motions. Motions filed

before Defendants' counsel has filed an appearance will generally be denied as

premature. Plaintiff need not submit any evidence to the Court at this time, unless

otherwise directed by the Court.

3) The Court will attempt service on Defendants by mailing each Defendant a

waiver of service. Defendants have 60 days from service to file an Answer. If

Defendants have not filed Answers or appeared through counsel within 90 days

of the entry of this order, Plaintiff may file a motion requesting the status of

service. After Defendants have been served, the Court will enter an order setting

discovery and dispositive motion deadlines.

4) With respect to a Defendant who no longer works at the address provided by

Plaintiff, the entity for whom that Defendant worked while at that address shall

provide to the Clerk said Defendant's current work address, or, if not known, said

Defendant's forwarding address. This information shall be used only for

effectuating service. Documentation of forwarding addresses shall be retained

only by the Clerk and shall not be maintained in the public docket nor disclosed

by the Clerk.

5) Defendants shall file an answer within 60 days of the date the waiver is sent by

the Clerk. A motion to dismiss is not an answer. The answer should include all

defenses appropriate under the Federal Rules. The answer and subsequent

pleadings shall be to the issues and claims stated in this Order. In general, an

answer sets forth Defendants' positions. The Court does not rule on the merits of

those positions unless and until a motion is filed by Defendants. Therefore, no

response to the answer is necessary or will be considered.

6) Once counsel has appeared for a Defendant, Plaintiff need not send copies of

his filings to that Defendant or to that Defendant's counsel. Instead, the Clerk will

file Plaintiff's document electronically and send a notice of electronic filing to

defense counsel. The notice of electronic filing shall constitute service on

Defendants pursuant to Local Rule 5.3. If electronic service on Defendants is not

available, Plaintiff will be notified and instructed accordingly.

7) Counsel for Defendants is hereby granted leave to depose Plaintiff at his place

of confinement. Counsel for Defendants shall arrange the time for the deposition.

8) Plaintiff shall immediately notify the Court, in writing, of any change in his

mailing address and telephone number. Plaintiff's failure to notify the Court of a

change in mailing address or phone number will result in dismissal of this lawsuit,

with prejudice.

9) Within 10 days of receiving from Defendants’ counsel an authorization to

release medical records, Plaintiff is directed to sign and return the authorization

to Defendants’ Counsel.

IT IS FURTHER ORDERED THAT THE CLERK IS DIRECTED TO:

1) Add Defendant Lieutenant Jump; 2) Dismiss Defendants Jeffries, Ledge,

Fouts, and Dennis for failure to state a claim upon which relief can be granted

pursuant to by 28 U.S.C. §1915A; 3) Deny Plaintiff’s Motion for Appointment

of Counsel, [5]; 4) Attempt service on Defendants pursuant to the standard

procedures; 5) Set an internal court deadline 60 days from the entry of this

order for the court to check on the status of service and enter scheduling

deadlines; and 6) Enter the Court's standard qualified protective order

pursuant to the Health Insurance Portability and Accountability Act.

Entered this 19th day of April, 2023.

s/James E. Shadid

_________________________________________

JAMES E. SHADID

UNITED STATES DISTRICT JUDGE