Mason v. Cecil

FOR THE SOUTHERN DISTRICT OF ILLINOIS

MICKEY MASON,

#R04326,

Plaintiff,

v. Case No. 19-cv-01375-NJR

HEATHER CECIL,

JOHN/JANE DOES 1, Mail Room Staff,

JOHHN/JANE DOES 2, Internal Affairs

Staff,

ROBERT REID,

MARY WEAVER,

PLUCKETT,

N. PLUCKETT,

JOSHUA YOUNG,

JOHN DOE 1, 1st Shift Segregation,

PIPER,

FITCH,

SHAY ALLEN,

K. ULRICH,

B. LOY,

JOHN DOE 2, 1st Shift Sergeant,

L. LIVINGSTON,

DEE DEE BROOKHART,

CHRISTOHPER WALTZ,

RUSSELL L. GOINS,

JOHN DOE 3, 1st Shift Lieutenant,1

DAN DOWNER,

AMY BURLE, and

ROB JEFFREYS,

Defendants.

MEMORANDUM AND ORDER

ROSENSTENGEL, Chief Judge:

Plaintiff Mickey Mason, an inmate of the Illinois Department of Corrections

1 The Clerk is directed to add this defendant to the docket. (See Doc. 10, p. 1).

brings this civil action pursuant to 42 U.S.C. § 1983 for violations of his constitutional

rights. He claims that he has be subjected to ongoing retaliation and harassment while at

Lawrence. He seeks monetary damages and injunctive relief.

The Complaint is now before the Court for preliminary review pursuant to 28

U.S.C. § 1915A. Under Section 1915A, any portion of a complaint that is legally frivolous,

malicious, fails to state a claim upon which relief may be granted, or requests 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

In the Complaint, Mason alleges that after sending mail to IDOC Director Rob

Jeffreys notifying him of legal mail interference at Lawrence on July 7, 2019, he has been

continually subjected to harassment, retaliation, and continued inference with his mail.

(Doc. 10, pp. 18, 21). His Complaint and exhibits contains the following allegations:2

Legal Mail

The mailroom staff, internal affairs staff, and Mailroom Supervisor Heather Cecil

2On December 17, 2019, Mason commenced this action by submitting an Electronic Filing Cover

Sheet form along with several exhibits and grievances. He was ordered to file a complaint on or

before January 24, 2020. (Doc. 4). A complaint was filed on January 17, 2020, (Doc. 10). The Clerk

of Court will be directed to rename the pleading at Doc. 1 as follows: Exhibits to the Complaint

(Doc. 10). Furthermore, because it appears that Mason is relying on statements made in the

Complaint and the previously filed exhibits in asserting his claims, the Court is construing the

allegations in these pleadings together. See Otis v. Demarass, 886 F.3d 639, 644 (7th Cir. 2018).

mail, and destroyed outgoing mail. (Doc. 10, pp. 17-18, 22; Doc. 1, p. 11; Doc. 10-1, pp. 6,

19). Specifically, on June 28, 2019, Mason received mail from an appellate court that was

opened not in his presence with the notation of legal mail scratched out on the manila

envelope. (Doc. 10, p. 17; Doc. 1, p. 2). He did not accept the mail since it had been opened

and taped without him being present and, as a result, missed the deadline to appeal the

court’s decision. (Doc. 10, p. 17). The appellate court sent Mason another copy of the

decision entered in his appeal on July 10, 2019. (Doc. 10, p. 21; Doc. 1, p. 10).

On July 2, 2019, Mason received a letter marked “Confidential Legal Mail” from

the Office of the State Appellate Defendant, that had appeared to be steamed opened,

delayed, and read by mailroom staff and the internal affairs staff, giving him only nine

days to file a petition for leave to appeal. (Doc. 10, p. 21).

Mason received legal mail from his attorney on July 26, 2019, August 2, 2019,

October 6, 2019, and December 12, 2019, that had been opened not in his presence.

(Doc. 10, pp. 25, 27, 32; Doc. 10-1, pp. 15, 27). One letter from his attorney mailed on

September 27, 2019, he did not receive until October 6, 2019, and one letter sent by him

to his attorney was delayed by nine days. (Doc. 10-1, pp. 15, 26).

On August 1, 2019, mailroom staff refused to send a letter to the NAACP, stating

that the letter must be addressed to a specific attorney. (Doc. 10, p. 27). Legal mail to the

Illinois State Police was also not sent and returned to him because the letter had been

sealed (Doc. 10, p. 18; Doc. 10-1, p. 7), and legal documents concerning his criminal case

that Mason attempted to mail to his private investigator were returned to him unsent

because he used legal envelopes for non-legal mail. (Doc. 10-1, p. 10).

p. 12), and on December 15, 2019, he sent mail to his family, did not receive a payment

receipt, and his family did not receive the mail. (Doc. 10-1, p. 27).

Finally, Mason mailed a civil complaint on December 17, 2019, concerning this

case, but it was not received by this Court. (Doc. 10-1, p. 27).

Retaliation and Harassment

Mason has been subjected to various forms of retaliation and harassment by staff

members at Lawrence. On July 22, 2019, Sergeant Robert Reid tore off the posted date

from a letter marked legal mail from Mason’s attorney, so Mason could not see if the letter

had been delayed. (Doc. 10, p. 23). Later that day, Reid shook down his cell and took his

legal documents concerning his criminal case, along with personal photos. (Doc. 10, 23;

Doc. 1, pp. 28-29). Reid gave Mason a falsified shake down slip stating that contraband

was found in Mason’s property box and issued a false disciplinary ticket. (Doc. 10, pp. 23-

24; Doc. 1, p. 28). Adjustment Committee Member N. Pluckett falsely reported that Mason

pled guilty to the ticket. (Doc. 10, p. 26). Mason did not receive his property back until

August 11, 2019, and his legal materials and soap were still missing. (Doc. 10-1, p. 5).

On August 1, 2019, Mason had a meeting with his attorney prior to his deposition

being taken for another case. Corrections Officer Shay Allen remained in the room during

the meeting, even after his attorney requested to speak privately with him. (Doc. 10,

p. 27). Allen took notes during the entire meeting. (Doc. 10, p. 28).

On August 5, 2019, Mason filed a PREA sexual harassment grievance against

Sergeant Reid for making him uncomfortable “due to [Reid] trying to engage in

homosexual activity by stating [he has] a fat ass.” (Doc. 10, p. 29; Doc. 1, p. 57). His claim

allegations were found to be unsubstantiated. (Doc. 10, pp. 29-35; Doc. 1, p. 59).

On August 7, 2019, in retaliation, Mason was relocated to a cell with an inmate

who internal affairs staff was trying to frame and also retaliate against. (Doc. 10, 33).

Mason wrote a grievance requesting an immediate transfer and protective custody.

(Doc. 10, p. 34). Internal Affairs Officer Piper responded by falsely stating that Mason

refused to give a statement regarding his protective custody request. (Doc. 10, p. 34).

Mason met with internal affairs staff, Mary Weaver and Pluckett, regarding emails

he had sent about the ongoing retaliation and harassment. Mason told them he did not

feel safe, and he was then taken to segregation under a false investigation. (Doc. 10-1,

pp. 1).

While in segregation, he complained to Corrections Officer John Doe 1 about the

toilet not working. Corrections Officer John Doe 1 became angry and transferred him to

an extremely hot cell that had feces on the walls and floor and was infested with spiders

and bugs. (Doc. 10-1, p. 2). Mason notified Sergeant John Doe 2, Lieutenant John Doe 3,

and a member of the mental health staff of the conditions of the cell, but remained there

for five days. (Doc. 10-1, pp. 3-4). Upon release from segregation, the gallery officer told

Mason to sign the property form stating that he had received all of his property or go

back to segregation. Upon returning to his cell, more of his property was gone. (Doc. 10-

1, p. 6).

On September 3, 2019, Mason was placed in Three Cell House. (Doc. 10-1, pp. 10-

11). Reid was intentionally placed in the same cell house on September 3rd, 14th, and

19th, and December 8th in order to harass and retaliate against him. (Doc. 10, p. 32;

(Doc. 10-1, pp. 11, 26).

Due to a court order in another lawsuit, Mason was to watch camera recordings in

order to identify defendants. (Doc. 10-1, p. 14). To watch the camera recordings, Internal

Affairs Staff Piper placed Mason in an open area where inmates could walk pass and see

Mason in the office watching the videos. As a result, inmates now believe that Mason is

snitching and giving information to Lawrence staff. (Doc. 10-1, p. 14).

Internal Affairs Staff Joshua Young met with Mason on October 7, 2019, regarding

Mason’s protective custody request. He attempted to bribe Mason by stating that if

Mason stopped writing grievances then he could assign Mason a job, place him in school,

talk to the mailroom staff, and have Sergeant Reid leave Mason alone. (Doc. 10-1, p. 16).

Young told Mason that he would place him in segregation and take his property, unless

Mason signed a document stating that he felt safe. If Mason signed the document, then

Young would transfer him to East Moline Correctional Center and ensure that the staff

would leave him alone. Mason signed the form, but the retaliatory acts continued.

(Doc. 10-1, p. 17).

On October 23, 2019, Corrections Officer Fitch would not allow Mason to take

documents with him to meet with his attorney. (Doc. 10-1, p. 17).

Internal affairs staff have also blocked emails sent by Mason. (Doc. 10-1, pp. 18-19,

22).

Medical

Mason was told by Nurse Jane Doe to take 1 tablet of Simvastatin every six hours.

(Doc. 10-1, p. 19). At some point during a medical appointment, the doctor told Mason

has been having aching pains on his left side. (Doc. 10-1, p. 20). Finally, Mason states that

he is being denied mental health assistance. (Id. at p. 12).

PRELIMINARY DISMISSALS

Mason makes several allegations against “mailroom staff and/or Internal Affairs

Staff,” who he identifies as John Does/Jane Does mail room staff and John Does/Jane

Does internal affairs staff (See Doc. 10, pp. 2, 22). While a plaintiff may use the “John Doe”

designation to refer to specific individual whose names are unknown, a plaintiff will run

afoul of the pleading standards in Iqbal and Twombly by merely asserting that groups of

staff violated his constitutional rights. See Brooks v. Ross, 578 F.3d 574, 580 (7th Cir. 2009).

Plaintiffs are required to associate specific defendants with specific claims, so that

defendants are put on notice of the claims brought against them and so they can properly

answer the complaint. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); FED. R.

CIV. P. 8(a)(2). Vague references to a group of staff, without specific allegations tying an

individual defendant to the alleged unconstitutional conduct, do not meet the pleading

standards of Rule 8 of the Federal Rules of Civil Procedure. Thus, the claims against John

Does/Jane Does mailroom staff and John Does/Jane Does internal affairs staff are

dismissed without prejudice, and these defendants shall be dismissed from this action.

Mason’s claims that he is receiving inadequate medical and mental health care will

also be dismissed. Not only are these allegations improperly brought in this action

regarding retaliation, harassment, and the mishandling of mail, but they are not asserted

against a properly named defendant. See Alexander v. United States, 721 F.3d 418, 422 (7th

Cir. 2013); George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007); FED. R. CIV. P. 18 and 20.

Based on the allegations of the Complaint, the Court finds it convenient to

designate following fifteen Counts:

Count 1: First Amendment access to courts claim against Cecil, Reid,

Jeffreys, Brookhart, Goins, Loy, Livingston, and Burle for the

mishandling Mason’s legal mail.

Count 2: First Amendment access to courts claim against Reid for

confiscation Mason’s legal materials on July 22, 2019.

Count 3: Fourteenth Amendment due process claim against Reid for

confiscating Mason’s property on July 22, 2019.

Count 4: Fourteenth Amendment due process claim against Reid, Loy,

and Livingston for issuing Mason a false disciplinary ticket

on July 22, 2019.

Count 5: Fourteenth Amendment due process claim against N.

Pluckett, Loy, and Livingston for falsely reporting that Mason

pled guilty to the disciplinary ticket issued on July 22, 2019.

Count 6: First Amendment access to courts claim against Allen,

Livingston, Burle, and Jeffreys for interfering with a

confidential meeting between Mason and his attorney on

August 1, 2019.

Count 7: Eighth Amendment claim of cruel and unusual punishment

against Reid, Brookhart, Jeffreys, Goins, Burle, Ulrich,

Downer, and Livingston for ongoing harassment against

Mason.

Count 8: Fourteenth Amendment due process claim against Weaver,

Pluckett, Livingston, Burle, and Jeffreys for placing Mason in

segregation under a false investigation.

Count 9: Eighth Amendment claim of unconstitutional conditions of

confinement against John Doe 1, John Doe 2, John Doe 3,

Ulrich, Livingston, Burle, and Jeffreys for placing Mason in an

unsanitary segregation cell from August 10, 2019, to August

15, 2019.

Livingston, Burle, and Jeffreys for the loss of Mason’s

property while he was in segregation.

Count 11: Fourteenth Amendment due process claim against Cecil and

Waltz for the confiscation of family photos mailed to Mason

on September 14, 2019, and September 19, 2019.

Count 12: First Amendment access to courts claim against Fitch, Waltz,

Livingston, and Brookhart for not allowing Mason to take

documents with him to meet with his attorney on October 23,

2019.

Count 13: First Amendment claim of retaliation against Brookhart,

Goins, Cecil, Reid, N. Pluckett, Weaver, Pluckett, Piper,

Young, John Doe 1, John Doe 2, John Doe 3, Fitch, Allen,

Ulrich, Loy, Livingston, Waltz, Downer, Burle, and Jeffreys.

Count 14: First Amendment claim for denying Mason access to the law

library.

Count 15: First Amendment free speech claim against Cecil for

repeatedly mishandling Mason’s incoming and outgoing

mail.

The parties and the Court will use this designation in all future pleadings and orders,

unless otherwise directed by a judicial officer of this Court. Any other claim that is

mentioned in the Complaint but not addressed in this Order should be considered

dismissed without prejudice as inadequately pled under the Twombly pleading

standard.3

Count 1

Inmates have a First Amendment right both to send and receive mail, Rowe v.

3 See Twombly, 550 U.S. at 570 (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”). This includes

any claims Mason is attempting to bring under Illinois State Law for civil conspiracy. In the

Complaint, Mason states the elements of civil conspiracy, but offers no additional facts or

associates this claim with any specific defendant. (Doc. 10, p. 19).

from examining mail to ensure that it does not contain contraband. Wolff v. McDonnell,

418 U.S. 539, 576 (1974). An inmate’s legal mail, that is “mail designated as

correspondence with an attorney,” Harrison v. Cty. of Cook. Ill., 364 F. App’x 250, 252 (7th

Cir. 2010), is entitled to greater protections because of the potential for interference with

his right of access to the courts.4 Rowe, 196 F.3d at 782. Thus, when a prison receives a

letter for an inmate that is marked with an attorney’s name and a warning that the letter

is legal mail, officials potentially violate the inmate’s rights if they open the letter outside

of the inmate’s presence. See Wolff, 418 U.S. at 577; Castillo v. Cook Cty. Mail Room Dep’t,

990 F.2d 304, 305–06 (7th Cir.1993). Not every letter from a law office or the court,

however, qualifies as privileged legal communication to be opened in the presence of the

inmate. See Guajardo-Palma, 622 F.3d at 805-806; Harrison 364 F. App’x at 253; Martin v.

Brewer, 830 F.2d 76, 78 (7th Cir. 1987).

To maintain a claim for denial of access to the courts based on the improperly

opening of, or interference with privileged legal mail, a plaintiff must demonstrate some

hindrance to his ability to prosecute a meritorious legal claim. No constitutional claim is

stated unless the element of prejudice is met. See Guajardo-Palma, 622 F.3d at 805-806. A

general policy or practice of opening and reading may be sufficient to show hinderance.

4 The Seventh Circuit has clarified that, because a confidential communication with a lawyer is

aimed to win a case rather than to enrich the marketplace of ideas, it is “more straightforward”

to view an interference with legal mail claim as infringing on the right of access to the courts as

opposed to the right of free speech. Guajardo-Palma v. Martinson, 622 F.3d 801, 801, 803 (7th Cir.

2010) (prison official reading mail to or from prisoners who sue them “is like a litigant’s

eavesdropping on conferences between his opponent and the opponent’s lawyer.”); see also

Delgado v. Godinez, 683 F. App’x 528, 529 (7th Cir. 2017).

to maintain a claim. See Bruscino v. Carlson, 654 F.Supp. 609, 618 (S.D. Ill. 1987), aff’d, 854

F.2d 162 (7th Cir. 1988).

Mason claims that his “legal mail and legal-oriented mail” were opened outside

of his presence (Doc. 10, p. 18), which includes letters from (1) an appellate court; (2) the

State Appellate Defender; (3) the State of Illinois Court of Claims; (4) the Attorney

General; (5) his attorneys; (6) the Department of Law; and (7) the Department of Justice.

He also alleges Heather Cecil refused to mail legal mail to (1) the NAACP because it was

not addressed to an individual; (2) the Illinois State Police because it was in a sealed

envelope; and (3) a private investigator for using legal envelopes for non-legal mail. He

was overcharged for sending legal documents, and the sending and receiving of his legal

mail was delayed on several occasions.

First, the Court notes that Mason does not have a right to be present when mail is

opened that is not from an attorney who represents him or from whom he seeks

representation. Kaufman v. McCaughtry, 419 F. 3d 678, 686 (7th Cir. 2005). Furthermore,

Mason has not made a showing that the mishandling of his mail relating to his legal

proceedings hindered his ability to pursue a legal claim or defense. Mason claims that he

missed a deadline to appeal because the letter from an appellate court had previously

been opened by prison staff, but he also states he did not “accept the mail due to it being

opened without being in my presences with tape on the manila envelope to seal it back

up[.]” (Doc. 10, p. 17). Accordingly, it appears that Mason missed the appellate court’s

deadline not because Defendants’ actions hindered him by opening the letter, but because

he refused to accept the letter. Mason also claims that he did not receive legal mail sent

petition for leave to appeal was July 11, 2019. (Doc. 10, p. 21). He does not include any

allegations, however, regarding how the delay hindered “his efforts to pursue” his legal

claim. As mere delay or inconvenience is not an unconstitutional detriment, this

allegation also does not demonstrate that he was denied access to the courts. See Ortiz v.

Downey, 561 F.3d 664, 671 (7th Cir. 2009). Mason also does not state how Sergeant Reid

hindered his ability to access the courts by tearing off the post-date sticker on July 22,

2019 (Doc. 10, p. 23), and so he shall be dismissed from Count 1.

Mason will be able to proceed with his claim of denial of access to the courts

against Cecil to the extent he alleges that correspondence with his attorneys were read on

multiple occasions outside his presence. See Guajardo-Palma, 622 F. 3d at 805 (“proof of a

practice of reading a prisoner’s correspondence with his lawyer should be ordinarily be

sufficient to demonstrate hindrance.”). Count 1 will also proceed against Jeffreys,

Brookhart, Goins, Loy, Livingston, and Burle who reviewed Mason’s frequent grievances

regarding the opening of his legal mail from his attorney and failed to address the

constitutional violation. Perez v. Fenoglio, 792 F.3d 768, 781-82 (7th Cir. 2015).

Count 2

Mason claims that Reid confiscated his legal materials during a shakedown on July

22, 2019. (Doc. 10, p. 23). He does not, however, explain the connection between the

confiscation of his “legal materials and an inability to pursue a legitimate challenge[,]”

Ortiz, 561 F.3d at 671 (citations omitted), and so Count 2 will be dismissed.

Count 3

In addition to confiscating his legal materials, Mason claims that Reid also took

IDOC prisoner has an adequate post-deprivation remedy for confiscation of a prisoner’s

non-contraband property by IDOC personnel in the form of an action for damages in the

Illinois Court of Claims. See Murdock v. Washington, 193 F.3d 510, 513 (7th Cir. 1999) (citing

705 ILCS 505/8); Stewart v. McGinnis, 5 F.3d 1031, 1035–36 (7th Cir. 1993). Thus, Mason is

afforded due process in state court for the deprivation of his property, and Count 3 will

be dismissed. See Hudson v. Palmer, 468 U.S. 517, 533 (1984).

Counts 4 and 5

When a plaintiff brings an action under Section 1983 for procedural due process

violations, he must show that the state deprived him of a constitutionally protected

interest in “life, liberty, or property” without due process of law. Zinermon v. Burch, 494

U.S. 113, 125 (1990). A court reviewing a due process claim must, therefore, engage in a

two part inquiry: (1) was there a protected interest at stake that necessitated the

protections demanded by due process; and (2) was the disciplinary hearing process

conducted in accordance with procedural due process requirements?

Mason alleges that he was issued a false disciplinary ticket on July 22, 2019, for the

possession of contraband and that Adjustment Committee member N. Pluckett falsely

stated that he pled guilty to the ticket. (Doc. 10, pp. 26, 31). A disciplinary ticket, even if

falsely issued, will not violate the Fourteenth Amendment if the inmate receives

procedural due process in the disposition of the ticket. Hanrahan v. Lane, 747 F.2d 1137,

1140 (7th Cir. 1984). Whether the procedures employed during his disciplinary

proceedings violated due process need not be considered, however, because Mason has

failed to plead that a protected interest was at stake requiring the protections of due

Mason does not describe any deprivations of a protected liberty interest as a result

of the false disciplinary ticket or the false statement that he plead guilty to the ticket. He

states that the ticket was expunged and only claims the he was deprived of his property.

(Doc. 10, p. 27; Doc. 1, p. 47). As previously mentioned, the Illinois Court of Claims

provides an adequate remedy in an action for damages regarding the deprivation of

property. Accordingly, Counts 4 and 5 are dismissed without prejudice.

Count 6

Mason claims that his “right to attorney client privileged communication” was

violated by the presence of Corrections Officer Allen in the room with him and his

attorney during a private meeting prior to his deposition. (Doc. 1, p. 27).

Although attorney-client privilege is not constitutional, inhibiting private

communication with an attorney may constitute a denial of meaningful access to the

courts. Guajardo-Palma, 622 F.3d at 802; Dreher v. Sielaff, 636 F.2d 1141, 1143 (7th Cir. 1980).

Again, a litigant must identify an underlying nonfrivolous claim that the prison officials'

actions impeded. See Christopher v. Harbury, 536 U.S. 403, 415 (2002); Lewis v. Casey, 518

U.S. 343, 351–53 (1996).

Here, Mason has not identified any harm he suffered as a result of Allen’s actions.

His conclusory allegation that Allen was present during the meeting in violation of his

rights is insufficient. (Doc. 10, p. 32). Without some indication that an existing or potential

claim has been prejudiced, Mason fails to state a claim for denial of access to the courts,

and Count 6 will be dismissed.

Mason claims that Sergeant Reid has been harassing him by tearing off the post-

date sticker from his mail, writing him a false shakedown slip and disciplinary ticket,

confiscating his property, and continually making sexual comments and gestures to him,

and so Count 7 will proceed against Reid. (Doc. 10, pp. 23, 24, 29; Doc. 10-1, pp. 10-11,

26). See Beal v. Foster, 803 F.3d 356, 358 (7th Cir. 2015). Count 7 also will proceed against

Brookhart, Jeffreys, Goins, Burle, Ulrich, Downer, and Livingston as Mason has alleged

the constitutional violation was brought to their attention and they failed to act. Perez,

792 F.3d at 782.

Count 8

The Seventh Circuit has explained that “inmates have no liberty interest in

avoiding transfer to discretionary segregation—that is, segregation imposed for

administrative, protective, or investigative purposes.” Townsend v. Fuchs, 522 F.3d 765,

771 (7th Cir. 2008). Segregation under certain conditions, however, may still constitute a

deprivation of a liberty interest if the placement segregation imposed an “atypical and

significant hardship on the inmate in relation to the ordinary incidents of prison life.”

Sandin v. Conner, 515 U.S. 472, 484 (1995); see also Mathews v. Brown, 768 F. App’x 537, 540

(7th Cir. 2019). When considering a due process claim for placement in segregation, the

Court is to consider “the duration and conditions of the confinement.” Mathews, 768 F.

App’x at 540.

Mason claims he was held in segregation for only five days. Because “[a]

confinement of that length does not implicate a liberty interest[,]” Count 8 will be

dismissed. Obriecht v. Raemisch, 565 F. App’x 535, (7th Cir. 2014) (ruling that seventy-eight

Columbia Corr. Inst., 559 F.3d 693, 697-98 (7th Cir. 2009)).

Count 9

Mason alleges that while in segregation he was intentionally placed in a hot

unsanitary cell with feces on the floor and walls and infested with spiders. (Doc. 10-1,

p. 2). He notified John Doe 1, John Doe 2, and John Doe 3 of the cell conditions and asked

to be moved, but Defendants disregarded his requests. Count 9 will proceed against John

Doe 1, John Doe 2, and John Doe 3, but will be dismissed against Ulrich, Livingston, Burle,

and Jeffreys. See Rhodes v. Chapman, 452 U.S. 337, 347 (1981). Mason claims Ulrich,

Livingston, Burle, and Jeffreys responded to his grievances regarding his cell conditions.

Because he wrote the grievances notifying them of his cell conditions after his release

from segregation, he has not demonstrated that these defendants had knowledge of his

cell conditions and disregarded the substantial risk of serious harm caused by those

conditions. (Doc. 10-1, p. 4). See Farmer v. Brennan, 511 U.S. 825 (1994).

Counts 10 and 11

Mason claims that when he returned to his cell from being in segregation, his JVC

headphones, a blue shirt, and extension cord, and legal books were missing. (Doc. 10-1,

p. 6). Also, two sets of family photos were mailed to him that he did not receive. (Doc. 10-

1, p. 13). As discussed in Counts 3, 4, and 5, the State of Illinois affords due process to

address Mason’s property deprivation, and so Counts 10 and 11 will be dismissed

without prejudice.

Count 12

Mason alleges that Corrections Officer Fitch prohibited him from taking his legal

Because he had to take his documents back to his cell, Mason was unable to sign his legal

documents over to his new attorney. (Id.). He was then forced to mail the documents to

his attorney so that mailroom staff and internal affairs staff could delay, open, and read

the documents before mailing them. Mason, again, has not identified an underlying

nonfrivolous legal claim that Fitch impeded by prohibiting him from giving the

documents to his attorney at the meeting, and so Count 12 will be dismissed. Christopher

v. Harbury, 536 U.S. 403, 415 (2002).

Count 13

To prevail on his First Amendment retaliation claim, Mason must show that

“(1) he engaged in activity protected by the First Amendment; (2) he suffered a

deprivation that would likely deter First Amendment activity in the future; and (3) the

First Amendment activity was ‘at least a motivating factor’ in the Defendants’ decision to

take the retaliatory action.” Gomez v. Randle, 680 F.3d 859, 866 (7th Cir. 2012) (citation

omitted).

Mason has set forth sufficient allegations to proceed on a retaliation claims against

Brookhart, Goins, Cecil, Reid, N. Pluckett, Weaver, Pluckett, Piper, Young, John Doe 1,

John Doe 2, John Doe 3, Fitch, Allen, Ulrich, Loy, Livingston, Waltz, Downer, Burle, and

Jeffreys. (Doc. 10, pp. 19, 20; Doc. 10-1, p. 11).

Count 14

Mason alleges that he has been denied access to the law library in retaliation.

(Doc. 10-1, p. 29). This claim, however, is not asserted against any named defendant, and

so Count 14 will be dismissed. Twombly, 550 U.S. at 555; FED. R. CIV. P. 8(a)(2); see also

Count 15

Prisoners have a First Amendment right both to send and receive mail in

communication with private individuals outside prison. Rowe, 196 F.3d at 782;

Zimmerman v. Tribble, 226 F.3d 568, 572 (7th Cir. 2000). With respect to general mail

communications, a valid First Amendment claim requires an allegation that there has

been “a continuing pattern or repeated occurrences” of denial or delay of mail delivery.

Zimmerman, 226 F.3d at 572 (7th Cir. 2000). In the Complaint, Mason details repeated

instances in which his mail was allegedly mishandled by Cecil, and so Count 15 will

proceed.

Mason also claims that his First Amendment rights were violated by the internal

affairs staff for delaying and blocking emails. (Doc. 10-1, pp. 18-19, 22). This allegation is

not asserted against individually named defendants, however, and is dismissed.

IDENTIFICATION OF UNKNOWN DEFENDANTS

As previously noted, Mason will be allowed to proceed with Counts 9 and 13

against John Does 1-3, but these individuals must be identified with particularity before

service of the Complaint can be made. Mason will have the opportunity to engage in

limited discovery to ascertain the identity of this individual. Rodriquez v. Plymouth

Ambulance Serv., 577 F.3d 816, 832 (7th Cir. 2009). Dee Dee Brookhart, the Warden of

Lawrence, remains a defendant in this action in her official and individual capacities, and

shall be responsible for responding to discovery aimed at identifying the unknown

defendants. Once the name of each John Doe is discovered, Mason shall file a motion to

substitute the newly identified defendant in place of the generic designation in the case

MOTION FOR PRELIMINARY INJUNCTION AND/OR TEMPORARY RESTRAINING ORDER

Mason filed a Motion for a Preliminary Injunction and/or Temporary Restraining

Order (Doc. 7). In the Motion, Mason recounts many of the same facts alleged in the

Complaint and states that he continues to be harassed, sexually harassed, threatened, and

retaliated against by staff at Lawrence. (Doc. 7, p. 2). He states that he will suffer

irreparable harm because mail interference will interfere with his legal proceedings and

“tends to chill and inmate[‘s] First Amendment right to petition the courts[.]” (Doc. 7,

p. 9). Mason claims he fears for his life and asks the Court to order an investigation

concerning the ongoing retaliation and harassment and to appoint him counsel. (Id. at

p. 11).

There are significant differences between a temporary restraining order (“TRO”)

and a preliminary injunction. A TRO can be issued without notice to the party to be

enjoined, but it may last no more than fourteen days. FED. R. CIV. P. 65(b)(2). Further, a

TRO may be issued without notice only if “specific facts in an affidavit or a verified

complaint clearly show that immediate or irreparable injury, loss, or damage will result

to the movant before the adverse party can be heard in opposition.” FED. R. CIV. P.

65(b)(1)(A). Such injunctive relief is warranted “to prevent a substantial risk of serious

injury from ripening into actual harm.” Farmer v. Brennan, 511 U.S. 825, 845 (1994).

In contrast to a TRO, a preliminary injunction is issued only after the adverse party

is given notice and an opportunity to oppose the motion. Fed. R. Civ. P. 65(a)(1).

“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed

on the merits, that he is likely to suffer irreparable harm in the absence of preliminary

interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (citations omitted); see

also Korte v. Sebelius, 735 F.3d 654, 665 (7th Cir. 2013); Woods v. Buss, 496 F.3d 620, 622 (7th

Cir. 2007); Cooper v. Salazar, 196 F.3d 809, 813 (7th Cir. 1999).

The Court concludes that a TRO should not be issued in this matter. Although

Mason claims that he is still being subjected to harassment, retaliation, and interference

with his legal mail, he does not cite to specific current incidents or conduct on the part of

Defendants regarding these allegations. The Court lacks sufficient information to assess

his need for emergency relief or prepare a TRO that is sufficiently narrowly-tailored to

address his present concerns. Mason’s vague assertions are not sufficient to clearly

demonstrate that he will suffer immediate and irreparable harm before Defendants can

be heard in opposition, and so the request for a TRO is DENIED at this time.

Mason also seeks a preliminary injunction. Although the Court is allowing

Mason’s claim regarding the repeated opening of mail from his attorneys to proceed past

threshold, he has not shown how he has been disadvantaged and prejudiced in pursuing

any of his legal claims by Defendants’ conduct. He states that he has missed court

deadlines because mail has been delayed, but he does not provide any further

information. (Doc. 7, p. 2). In addition to claiming interference with his legal mail, Mason

claims that he was also prevented from filing documents in this case. (Doc. 7, p. 11). The

Complaint has been successfully filed, however, and Mason has already submitted over

450 pages of filings in this case since December 17, 2019. Therefore, to the extent he

requests preliminary injunctive relief regarding his claims for interference with his legal

mail and denial of access to the courts, he has not proved that he is likely to succeed on

Mason’s request for a preliminary injunction regarding ongoing harassment,

sexual harassment, and retaliation will remain pending until Defendants have been

served. Defendants are ORDERED to respond to the request for a preliminary injunction

within 14 days of service of the pleadings in this case, at which point the Court will

determine the need for a hearing on the motion requesting a preliminary injunction.

Finally, Mason’s claims regarding his healthcare have been dismissed, and so any

requests for injunctive relief for medical treatment are not related to his surviving claims

and are outside the scope of this lawsuit. See Daniels v. Dumsdorff, No. 19-cv-00394, 2019

WL 3322344 at *1 (S.D. Ill. July 24, 2019) (citations omitted). Mason is ADVISED that if

he wishes to pursue the unrelated claims regarding his medical treatment, he must do so

by filing a separate case under 42 U.S.C. § 1983.

Mason’s request for the recruitment of counsel is denied.5 In the motion, Mason

does not provide any information regarding attempts to recruit counsel on his own or

whether he has been effectively precluded from doing so. Because he has not made this

showing, the Court finds that Mason has not made a reasonable attempt to find counsel.

Should Mason choose to move for recruitment of counsel at a later date, the Court directs

Mason to: (1) contact at least three attorneys regarding representation in this case prior

to filing another motion; (2) include in the motion the names and address of at least three

attorneys he has contacted; and (3) if available, attach the letters from the attorneys who

declined representation.

5 In evaluating Mason’s request for the recruitment of Counsel, the Court applies the factors

discussed in Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007) and related authority.

For the reasons set forth above, the Complaint survives preliminary review

pursuant to 28 U.S.C. § 1915A. COUNT 1 shall proceed against Cecil, Jeffreys,

Brookhart, Goins, Loy, Livingston, and Burle, but is DISMISSED as to Reid. COUNT

7 shall proceed against Reid, Brookhart, Jeffreys, Goins, Burle, Ulrich, Downer, and

Livingston. COUNT 9 shall proceed against John Doe 1, John Doe 2, and John Doe 3,

but is DISMISSED against Ulrich, Livingston, Burle, and Jeffreys. COUNT 13 shall

proceed against Brookhart, Goins, Cecil, Reid, N. Pluckett, Weaver, Pluckett, Piper,

Young, John Doe 1, John Doe 2, John Doe 3, Fitch, Allen, Ulrich, Loy, Livingston,

Waltz, Downer, Burle, and Jeffreys. COUNT 15 shall proceed against Cecil. COUNTS

2, 3, 4, 5, 6, 8, 10, 11, 12, and 14 are DISMISSED without prejudice. Defendants John/Jane

Does 1, Mail Room Staff, and John/Jane Does 2, Internal Affairs, are dismissed without

prejudice. The Clerk is DIRECTED to terminate them as defendants in this action. The

Clerk is also DIRECTED to ADD John Doe 3, 1st Shift Lieutenant, to the docket as a

defendant in accordance with footnote 1 and to rename the pleading at Doc. 1 in

accordance with footnote 2.

IT IS FURTHER ORDERED that the request for a temporary restraining order is

DENIED without prejudice, and the requests for a preliminary injunction regarding

interference with legal mail, denial of access to courts, and medical treatment are

DENIED without prejudice. The request for a preliminary injunction regarding

retaliation and harassment by staff at Lawrence is DEFERRED. Defendants are

ORDERED to respond to the request for preliminary injunction within 14 days of service

of the pleadings in this case. The request for recruitment of counsel is also DENIED

The Clerk of Court shall prepare for Brookhart, Goins, Cecil, Reid, N. Pluckett,

Weaver, Pluckett, Piper, Young, Fitch, Allen, Ulrich, Loy, Livingston, Waltz, Downer,

Burle, Jeffreys, and John Does 1-3 (once identified): (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 (Doc. 10), this

Memorandum and Order, and the Motion for Preliminary Injunction (Doc. 7) to

Defendants’ place of employment as identified by Mason. 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.

Service shall not be made on the unknown defendants, John Does 1, 2, and 3, until

such time as Mason has identified him or her by name in a properly filed motion for

substitution. Mason is ADVISED that it is his responsibility to provide the Court with

the name and service address for this individual.

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.

IT IS FURTHER ORDERED that if judgment is rendered against Mason, and the

judgment includes the payment of costs under § 1915, he 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(£)(2)(A).

Finally, Mason 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: January 29, 2020 7 (ocntteng

“oi

NANCY J. ROSENSTENGEL |

Chief U.S. District Judge

Page 24 of 25

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 the complaint.

It will likely take at least 60 days from the date of this Order to receive the defendants’

Answers, but it is entirely possible that it will take 90 days or more. When all of the

defendants have filed Answers, the Court will enter a Scheduling Order containing

important information on deadlines, discovery, and procedures. Mason 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.

Mason need not submit any evidence to the Court at his time, unless otherwise directed

by the Court.