The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
GREGORY BARNES, #B88957, )
)
Plaintiff, )
)
vs. ) Case No. 19−cv–00806−SMY
)
FRANK LAWRENCE, )
KRISTA ALLSUP, )
ANDREW SPILLER, and )
PATTY SNEED, )
)
Defendants. )
MEMORANDUM AND ORDER
YANDLE, District Judge:
Plaintiff Gregory Barnes, a transgender individual and inmate of the Illinois Department
of Corrections (“IDOC”) currently incarcerated at Pontiac Correctional Center, brings this civil
rights action pursuant to 42 U.S.C. § 1983 for alleged deprivations of his constitutional rights that
occurred while he was in custody at Menard Correctional Center (“Menard”). Plaintiff claims he
was denied the right marry and was retaliated and discriminated against by Menard employees.
He requests money damages and injunctive relief.
Plaintiff’s Complaint is now before the Court for preliminary review pursuant to 28 U.S.C.
§ 1915A. Under Section 1915A, the Court is required to screen prisoner Complaints to filter out
non-meritorious claims. See 28 U.S.C. § 1915A(a). Any portion of a Complaint that is legally
frivolous, malicious, fails to state a claim upon which relief may be granted, or asks for money
damages from a defendant who by law is immune from such relief must be dismissed. 28 U.S.C.
§ 1915A(b). At this juncture, the factual allegations of the pro se complaint are to be liberally
construed. Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).
The Complaint
Plaintiff makes the following allegations in the Complaint (Doc. 1): In December 2018,
Plaintiff and his fiancée, Christian, who was also incarcerated at Menard, submitted seventeen
written requests for an interview with the chaplain in order to start the process of getting married.
Their requests were ignored and so they filed multiple grievances that also went unprocessed. Id.
at pp. 6, 7. Plaintiff asked Warden Frank Lawrence if there was anything he could do or if Warden
Lawrence could provide Plaintiff with information regarding the marriage process for inmates. Id.
at p. 6. Warden Lawrence informed Plaintiff that no such event would happen at Menard and that
Plaintiff should not bring the subject up again. Id. at p. 7. Plaintiff claims that Case Worker
Supervisor Krista Allsup said to consider “my request like a disease, and to keep it to myself until
I get out of prison.” Id.
In March 2019, Plaintiff and Christian were taken to see Lieutenant Andrew Spiller, who
threatened to separate them and place them in segregation if they did not change their minds about
wanting to marry. Id. Following the meeting, Plaintiff and Christian were attacked in the barber
shop and were then separated and placed in segregation. When they were released from
segregation, they were no longer celled together. Id. at p. 8. Christian was transferred from
Menard to Pontiac Correctional Center in June 2019.
Based on the allegations in the Complaint, the Court designates the following five Counts:
Count 1: Fourteenth Amendment right to marry claim against Lawrence, Allsup,
Spiller, and Sneed for denying Plaintiff the right to marry.
Count 2: First Amendment claim of retaliation against Lawrence, Allsup, Spiller, and
Sneed for not processing Plaintiff’s grievances, orchestrating the attack in
the barber shop, harassing and threatening Plaintiff, placing Plaintiff in
segregation, and transferring Christian to another facility in retaliation for
excising the right to marry and filing grievances.1
Count 3: Eighth Amendment claim against Lawrence, Allsup, Spiller, and Sneed for
orchestrating an attack against Plaintiff in the barber shop.
Count 4: Fourteenth Amendment equal protection claim against Lawrence, Allsup,
Spiller, and Sneed for discriminating against Plaintiff for being black and
transgender.
Count 5: Fourteenth Amendment due process claim against Lawrence, Allsup,
Spiller, and Sneed for the mishandling of Plaintiff’s grievances.
The parties and the Court will use these designations in all future pleadings and orders, unless
otherwise directed by a judicial officer of this Court. Any claim that is mentioned in the
Complaint but not addressed in this Order is considered dismissed without prejudice as
inadequately pled under Twombly.2
Preliminary Dismissal
As an initial matter, the Court dismisses all claims against Patty Sneed. Plaintiff alleges
that Sneed, a member of the Administrative Review Board, was made aware that the other
defendants were violating his constitutional rights and ignored his grievance without “any further
consideration, investigation, or resolution.” (Doc. 1, p.10). Inmates do not have a constitutional
right to an effective grievance procedure. Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir.
1996). As such, the fact that prison officials denied, mishandled, or refused to consider grievances
or claims raised by grievances, “who otherwise did not cause or participate in the underlying
conduct[,] states no claim.” Owens v. Hinsley, 635 F.3d 950, 953 (7th Cir. 2011). Some personal
1 Plaintiff also claims that he was retaliated and discriminated against because he is transgender. (Doc. 1, p. 10).
Plaintiff’s claims regarding unconstitutional treatment because he is transgender will be analyzed under the Fourteenth
Amendment in Count 4.
2 See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (an action fails to state a claim upon which relief can
be granted if it does not plead “enough facts to state a claim to relief that is plausible on its face”).
involvement beyond the grievance process is necessary. Haywood v. Hathaway, 842 F.3d 1026
(7th Cir. 2016). Plaintiff does not provide any facts in his statement of claim that suggest Sneed
had personal involvement in the alleged constitutional violations aside from processing and/or
denying his grievances. Accordingly, any claims against her will be dismissed without prejudice.
Discussion
Count 1
In Turner v. Safley, 482 U.S. 78 (1987), the Supreme Court recognized the fundamental
right of prisoners to marry – a right that may be limited only for sound penological reasons. Id. at
94–100. The Supreme Court has also found that the fundamental right to marry extends to same-
sex couples. Obergefell v. Hodges, 135 S. Ct. 2584, 2599 (2015).
Plaintiff claims Defendants denied him the right to marry another inmate. Whether
Defendants’ refusal “is reasonably related to legitimate penological interests” is unclear at this
point. Riker v. Lemmon, 798 F.3d 546, 551 (7th Cir. 2015). Therefore, Count 1 will proceed
against Lawrence, Spiller, and Allsup.
Count 2
Prison officials may not retaliate against inmates for filing grievances, exercising First
Amendment rights, or otherwise complaining about their conditions of confinement. See, e.g.,
Gomez v. Randle, 680 F.3d 859, 866 (7th Cir. 2012). To state a retaliation claim, a plaintiff must
allege that “(1) he engaged in activity protected by the First Amendment; (2) he suffered a
deprivation likely to deter such activity; and (3) the First Amendment activity was at least a
motivating factor in the decision to impose the deprivation.” Hawkins v. Mitchell, 756 F.3d 983,
996 (7th Cir. 2014).
Plaintiff claims Defendants retaliated against him for exercising his right to marry and to
file grievances by improperly handling his grievances and marriage requests. He also alleges that
Spiller harassed and threatened him, orchestrated an attack against him, and transferred Christian
(his fiancée) to another facility. While some of these allegations would likely not be actionable in
and of themselves, if the acts were taken in retaliation of the exercise of a constitutionally protected
right, they are actionable under § 1983. See, Bridges v. Gilbert, 557 F.3d 541, 552 (7th Cir. 2009).
Accordingly, Count 2 survives screening.
Count 3
“The Eighth Amendment protects against ‘calculated harassment unrelated to prison
needs.’” King v. McCarty, 781 F.3d 889, 897 (7th Cir. 2015) (citing Hudson v. Palmer, 468 U.S.
517, 530 (1984)). Plaintiff’s alleges that Spiller threatened him and stated that he would be
“segregated, separated, and dealt with” if he did not change his mind about wanting to marry.
(Doc. 1, p. 7). He also alleges that following these threats, he was attacked at the barber shop,
placed in segregation, and subsequently celled in a different cell than Christian. These allegations
are sufficient to state a claim.
However, Plaintiff’s claims of cruel and unusual punishment against Lawrence and Allsup
will be dismissed. Plaintiff does not include enough facts so that his claim crosses “the line
between possibility and plausibility.” Twombly, 550 U.S. at 557. Although the Court is obligated
to accept factual allegations as true, see Smith v. Peters, 631 F.3d 418, 419 (7th Cir. 2011), “naked
assertions devoid of further factual enhancement” are insufficient to state a claim. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citations omitted). Additionally,
“[l]iability under § 1983 is direct rather than vicarious; supervisors are responsible for their own
acts but not for those of subordinates, or for failing to ensure that subordinates carry out their tasks
correctly.” Horshaw v. Casper, 910 F.3d 1027, 1029 (7th Cir. 2018).
Plaintiff also claims that Lawrence deferred to Spiller and allowed Spiller to threaten and
mistreat him and that “Spiller and defendants” directed the attack and his placement into
segregation. (Doc. 1, pp. 8, 10). But he does not include facts suggesting that Lawrence or Allsup
were personally involved in the attack or subsequent segregation placement. Therefore, Count 3
will be dismissed against them.
Count 4
The Equal Protection Clause of the Fourteenth Amendment protects against governmental
discrimination on the basis of race, gender, national origin, or religion. It also prohibits a
government official from singling out a person for different treatment for no rational reason. “To
state a class-of-one equal protection claim, an individual must allege that he was ‘intentionally
treated differently from others similarly situated and that there is no rational basis for the difference
in treatment.’” Swanson v. City of Chetek, 719 F.3d 780, 783-84 (7th Cir. 2013) (quoting Vill. of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000)).
Here, Plaintiff claims Spiller harassed him for being transgender, black, and in love with
Christian. Spiller’s alleged statements that at Menard “there is no place for such faggot games”
and that Plaintiff would “never see Christian again until they met in hell” suggest he may have
denied Plaintiff’s request to marry because Plaintiff is transgender. (Doc. 1, p. 9). Likewise, based
on statements allegedly made, it is plausible that Lawrence and Allsup’s refusal to address
Plaintiff’s grievances and requests were due to prejudice against transgender individuals. At this
stage Plaintiff has sufficiently pled an equal protection claim, and Count 4 will proceed for further
consideration.
Count 5
As previously noted, prison grievance procedures do not give rise to a liberty interest
protected by the Due Process Clause. Therefore, Plaintiff’s claims that Defendants violated his
constitutional rights by ignoring, destroying, and never processing his grievances will be
dismissed.
Request for Injunctive Relief
In addition to money damages, Plaintiff requests injunctive relief prohibiting Defendants
at Menard from continuing the retaliatory separation of he and Christian and denying their requests
to marry. (Doc. 1, p. 11). However, Plaintiff has notified the Court that he is now incarcerated at
Pontiac Correctional Center. (Doc. 8). “If a prisoner is transferred to another prison, his request
for injunctive relief against officials of the first prison is moot unless he can demonstrate that he
is likely to be retransferred,” and these allegations of retransfer “may not be based on mere
speculation.” Higgason v. Farley, 83 F.3d 807, 811 (7th Cir. 1996). Accordingly, Plaintiff's
request for injunctive relief is DENIED as MOOT.
Motion to Appoint Counsel
Plaintiff has also filed a Motion for Recruitment of Counsel (Doc. 6). There is no
constitutional or statutory right to appointment of counsel in federal civil cases. Romanelli v.
Suliene, 615 F.3d 847, 851 (7th Cir. 2010). Federal District Courts have discretion under 28
U.S.C. § 1915(e)(1) to request counsel to assist pro se litigants. Id. When presented with a request
to appoint counsel, the Court must consider: “(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).
Plaintiff discloses that he has mailed letters to four law firms in an attempt to obtain counsel
and states that he has not received any responses. Providing a list of law firms, however, with no
additional information or documentation, such as copies of the letters sent, is not sufficient to
demonstrate that Plaintiff has made reasonable efforts to retain counsel on his own. With respect
to his ability to pursue this action pro se, Plaintiff indicates that he is unable to represent himself
because of the complexity of the issues. Nonetheless, the Court finds that Plaintiff can proceed
pro se, at least for now. Plaintiff’s pleadings demonstrate an ability to construct coherent sentences
and relay information to the Court. The claims in this case are straightforward, and Plaintiff
appears competent to litigate this matter without representation at this time. For these reasons,
Plaintiff’s motion is DENIED without prejudice; Plaintiff may renew his request for appointment
of counsel at a later date if necessary. Should Plaintiff renew his request, he should include
rejection letters from at least three lawyers to prove that he has recently made reasonable efforts
to find a lawyer on his own.
Disposition
IT IS HEREBY ORDERED that the Motion for Recruitment of Counsel (Doc. 6) is
DENIED without prejudice.
IT IS FURTHER ORDERED that COUNT 1 shall proceed against Lawrence, Allsup,
and Spiller, but is DISMISSED without prejudice as to Sneed.
IT IS FURTHER ORDERED that COUNT 2 shall proceed against Lawrence, Allsup,
and Spiller, but is DISMISSED without prejudice as to Sneed.
IT IS FURTHER ORDERED that COUNT 3 shall proceed against Spiller, but is
DISMISSED without prejudice as to Lawrence, Allsup, and Sneed.
IT IS FURTHER ORDERED that COUNT 4 shall proceed against Lawrence, Allsup,
and Spiller, but is DISMISSED without prejudice as to Sneed.
IT IS FURTHER ORDERED that COUNT 5 is DISMISSED with prejudice.
Because there are no surviving claims against Sneed, the Clerk of Court is DIRECTED to
terminate her in the Case Management/Electronic Case Filing (“CM/ECF”) system.
IT IS FURTHER ORDERED the Clerk of Court shall prepare for Lawrence, Allsup,
and Spiller: (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of a Summons), and
(2) Form 6 (Waiver of Service of Summons). The Clerk is DIRECTED to mail these forms, a
copy of the Complaint, and this Memorandum and Order to each Defendant’s place of employment
as identified by Plaintiff. If a Defendant fails to sign and return the Waiver of Service of Summons
(Form 6) to the Clerk within 30 days from the date the forms were sent, the Clerk shall take
appropriate steps to effect formal service on that Defendant, and the Court will require that
Defendant pay the full costs of formal service, to the extent authorized by the Federal Rules of
Civil Procedure.
If a Defendant cannot be found at the work address provided by Plaintiff, the employer
shall furnish the Clerk with the Defendant’s current work address, or, if not known, the
Defendant’s last-known address. This information shall be used only for sending the forms as
directed above or for formally effecting service. Any documentation of the address shall be
retained only by the Clerk. Address information shall not be maintained in the court file or
disclosed by the Clerk.
Defendants are ORDERED to timely file an appropriate responsive pleading to the
Complaint and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g).
Pursuant to Administrative Order No. 244, Defendants need only respond to the
issues stated in this Merit Review Order.
This entire matter shall be REFERRED to a United States Magistrate Judge for
disposition, pursuant to Local Rule 72.2(b)(3) and 28 U.S.C. § 636(c), if all parties consent to such
a referral.
IT IS ALSO ORDERED that if judgment is rendered against Plaintiff, and the judgment
includes the payment of costs under § 1915, Plaintiff will be required to pay the full amount of the
costs, even though his application to proceed in forma pauperis was granted. See 28 U.S.C. §
1915(f)(2)(A).
Finally, Plaintiff is ADVISED that he is under a continuing obligation to keep the Clerk of
Court and each opposing party informed of any change in his address; the Court will not
independently investigate his whereabouts. This shall be done in writing and not later than 7 days
after a transfer or other change in address occurs. Failure to comply with this order will cause a
delay in the transmission of court documents and may result in dismissal of this action for want of
prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: 11/18/2019
s/Staci M. Yandle
STACI M. YANDLE
United States District Judge
Notice to Plaintiff
The Court will take the necessary steps to notify the appropriate defendants of your lawsuit
and serve them with a copy of your complaint. After service has been achieved, the defendants
will enter their appearance and file an Answer to your Complaint. It will likely take at least 60
days from the date of this Order to receive the defendants’ Answer, but it is entirely possible that
it will take 90 days or more. When all the defendants have filed Answers, the Court will enter a
Scheduling Order containing important information on deadlines, discovery, and procedures.
Plaintiff is advised to wait until counsel has appeared for the defendants before filing any motions,
to give the 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 specifically directed to do so.