Jones v. Doe 1

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

REGINALD JONES, #B58058, )

)

Plaintiff, )

)

vs. ) Case No. 20-cv-00158-SMY

)

FRANK LAWRENCE, )

JOHN DOE 1, )

JANE DOE 1, )

WATERMAN, )

CARTWRIGHT, )

ANDERSON, )

JOHN DOE 2, )

JOHN DOE 3, )

JOHN DOES 4-13, )

JOHN DOE 14 )

JANE DOES 2-3, and )

MORRIS, )

)

Defendants. )

MEMORANDUM AND ORDER

YANDLE, District Judge:

Plaintiff Reginald Jones, an inmate of the Illinois Department of Corrections currently

incarcerated at Menard Correctional Center (“Menard”), filed this action pursuant to 42 U.S.C. §

1983 for alleged deprivations of his constitutional rights. Plaintiff asserts claims under the First

and Eighth Amendments and seeks monetary damages and injunctive relief. (Doc. 1).

This case is now before the Court for preliminary review of the Complaint under 28 U.S.C.

§ 1915A, which requires the Court to screen prisoner Complaints to filter out nonmeritorious

claims. 28 U.S.C. § 1915A(a). Any portion of the Complaint that is legally frivolous, malicious,

fails to state a claim for relief, or requests money damages from an immune defendant must be

dismissed. 28 U.S.C. § 1915A(b).

The Complaint

Plaintiff makes the following allegations in his Complaint: On July 15, 2019, Plaintiff was

involved in an assault of a staff member at Pinckneyville Correctional Center (“Pinckneyville”).

(Doc. 1, p. 35). He was pepper sprayed and restrained in handcuffs. (Id.). He was later

interviewed by John Doe 1 and Jane Doe 1 and advised them he had suffered injuries to his left

ear, neck, and wrists. (Id.). The wrist lacerations were visible, but John Doe 1 and Jane Doe 1

approved his immediate transfer to Menard without providing him with medical care. (Id.). The

denial of medical care was in retaliation for the staff assault. (Id., p. 42).

Waterman and Cartwright transported Plaintiff to Menard. (Id., 35). After his arrival at

Menard, Plaintiff was interviewed by John Doe 2 and advised him of the wrist lacerations and his

anxiety about the Pinckneyville staff assault. (Id., pp. 35, 45). John Doe 2 failed to contact medical

or mental healthcare in retaliation for the staff assault. (Id., p. 42, 45).

After John Doe 2 left the room, Plaintiff was subjected to an attempted assault, which was

done in retaliation for the Pinckneyville staff assault. (Id., pp. 36, 38, 46). Waterman aimed an

uncapped ballpoint pen at the base of his neck. (Id.). Cartwright, John Does 4-13, and Jane Does

2-3 stood behind Waterman, hand-in-hand in an attempt to provide the necessary momentum to

cause the pen to pierce Plaintiff’s neck. Plaintiff prevented the attack by facing the would-be

assailants. (Id., pp. 36-37). Plaintiff was secured in the bullpen and Waterman, Cartwright, John

Does 4-13, and Jane Does 2-3 left the area. (Id., p. 37).

Shortly thereafter, Plaintiff was subjected to a second attempted assault in retaliation for

the Pinckneyville staff assault. (Id., p. 39). Anderson and John Doe 3 came to the bullpen and

Anderson ordered Plaintiff to face the back wall. (Id., p. 37). Anderson was holding a brass or

metal bar with a ring and 2-inch horizontal extension. (Id.). Anderson crossed the bullpen aiming

the bar at Plaintiff’s neck while John Doe 3 stood watch. (Id.). Plaintiff prevented the attack by

facing Anderson. (Id.). He was then taken to a cell by Anderson and John Doe 3. (Id.).

The attempted assaults caused Plaintiff anxiety, insomnia, distress, and fear for his life.

(Id., p. 39). He submitted an emergency grievance to Warden Lawrence on August 13, 2019

regarding the attempted assaults. (Id., p. 40). Lawrence denied emergency review and returned

the grievance to Plaintiff for processing by his counselor. (Id., pp. 40-41). His counselor

interviewed the individuals named in the grievance regarding the attempted assaults. (Id., p. 42).

Plaintiff was subjected to a defective grievance process in retaliation for the staff assault and for

filing the grievance. (Id., p. 42).

On December 24, 2019, Morris and John Doe 14 sprayed pepper spray in Plaintiff’s cell in

an attempt to stun and burn him and possibly to enter the cell to cause his death. (Id., pp. 47-48).

On December 26, 2019, Morris told Plaintiff he had seen a copy of Plaintiff’s complaint to the

Inspector General, which contained names and addresses of Plaintiff’s family members. (Id.).

Morris claimed that he had shown it to an inmate worker and gang member and a hit had been

carried out on Plaintiff’s family. (Id., p. 49). Plaintiff suffered in pain and agony believing his

family had been murdered until he received a letter the next evening from his mother. (Id.).

Sometime between December 24, 2019 and December 30, 2019, Plaintiff was subjected to

another attack of pepper spray in his cell by Morris and John Doe 14. (Id., pp. 49, 52).

Additionally, Morris told Plaintiff he was throwing away letters sent to Plaintiff by his brothers.

(Id., p. 50). These actions were done in retaliation for the Pinckneyville staff assault, the

emergency grievance filed on August 13, 2019, and a lawsuit filed against Menard officials (SDIL

Case No. 3:19-cv-01281-NJR filed November 21, 2019). (Id., p. 47).

Based on the allegations in the Complaint, the Court finds it convenient to organize this

action into the following Counts:

Count 1: Eighth Amendment claim against John Doe 1 and Jane Doe 1 for

denying Plaintiff medical care for the injuries he suffered on July

15, 2019.

Count 2: Eighth Amendment claim against John Doe 2 for denying Plaintiff

medical and mental health care for his anxiety and the injuries he

suffered on July 15, 2019.

Count 3: Eighth Amendment claim against Waterman, Cartwright, John Does

4-13, and Jane Does 2-3 for their participation in the harassment and

threat to Plaintiff’s safety on July 15, 2019.

Count 4: Eighth Amendment claim against Anderson and John Doe 3 for their

participation in the harassment and threat to Plaintiff’s safety on July

15, 2019.

Count 5: First Amendment retaliation claim against Waterman, Cartwright,

John Does 4-13, Jane Does 2-3, Anderson, and John Doe 3 for

harassing, attempting to assault, and threating Plaintiff’s safety in

retaliation for the Pinckneyville staff assault.

Count 6: First Amendment access to courts claim against Lawrence for

failing to grant emergency review of Plaintiff’s grievance regarding

the attempted assaults and sending it back to Plaintiff for submission

to the counselor.

Count 7: First Amendment retaliation claim against Lawrence for failing to

grant emergency review of Plaintiff’s grievance regarding the

attempted assaults and sending it back to Plaintiff for submission to

the counselor in retaliation for the Pinckneyville staff assault and

filing the grievance.

Count 8: Eighth Amendment claim against Lawrence because he knew of the

attempted assaults but denied emergency review of Plaintiff’s

grievance.

Count 9: Eighth Amendment claim against Morris and John Doe 14 for

spraying pepper spray in Plaintiff’s cell on December 24, 2019.

Count 10: Eighth Amendment claim against Morris and John Doe 14 for

spraying pepper spray in Plaintiff’s cell on a second occasion

sometime between December 24-30, 2019.

Count 11: First Amendment claim against Morris and John Doe 14 for

retaliating against Plaintiff for the Pinckneyville staff assault, filing

a grievance regarding the attempted assaults at Menard, and filing a

lawsuit against Menard officials by spraying pepper spray in

Plaintiff’s cell on two occasions, threatening his family, and

destroying his mail.

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. The designations do not constitute an

opinion regarding their merit. Any other intended claim that has not been recognized by the

Court is considered dismissed without prejudice as inadequately pleaded under the Twombly

pleading standard.1

Discussion

Count 1

District courts have a duty to apply Rule 20 of the Federal Rules of Civil Procedure to

prevent improperly joined parties from proceeding together in the same case. George, 507 F.3d at

607. Rule 21 of the Federal Rules of Civil Procedure grants district courts broad discretion when

deciding whether to sever claims or to dismiss improperly joined defendants. See Owens v.

Hinsley, 635 F.3d 950, 952 (7th Cir. 2011). Here, the claim in Count 1 arose at Pinckneyville and

the claims in Counts 2-11 arose at Menard. Therefore, the Court will exercise its discretion and

sever Count 1 from this case. See Fed. R. Civ. P. 18, 20(a)(2); George v. Smith, 507 F.3d at 607;

Wheeler v. Talbot, 695 F. App’x 151 (7th Cir. 2017); Owens v. Godinez, 860 F.3d 434, 436 (7th

Cir. 2017).

Count 2

The allegations in the Complaint are sufficient to allow the Eighth Amendment claim in

Count 2 to proceed against John Doe 2.

1 An action fails to state a claim upon which relief can be granted if it does not plead “enough facts to state a claim

that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

Counts 3 and 4

Plaintiff does not claim he was subjected to excessive force during the attempted assaults.

However, the circumstances of the attempted assaults may be characterized as harassment and a

threat to Plaintiff’s safety. Harassment can rise to the level of cruel and unusual punishment when

it involves “a credible threat to kill, or to inflict other physical injury.” Dobbey v. Ill. Dep’t of

Corr., 574 F.3d 443, 446 (7th Cir. 2009). An objective standard is applied to determine whether

prison officials’ words or actions constitute cruel and unusual punishment. Id. The pertinent

inquiry is what a “reasonable” person would fear; not the actual fear of the plaintiff. Id.

The two incidents alleged in the Complaint involved the threat of physical injury with an

item brandished as a weapon and physical intimidation that could lead a reasonable person to fear

for his safety. Therefore, the Eighth Amendment claims asserted in Counts 3 and 4 will be allowed

to proceed against the defendants named in each Count.

Count 5

Plaintiff alleges the actions that are the subject of Counts 3 and 4 were done in retaliation

for the Pinckneyville staff assault. To state a claim for retaliation under the First Amendment, a

plaintiff must allege that (1) he engaged in constitutionally protected speech, (2) he suffered a

deprivation likely to deter protected speech; and (3) his protected speech was a motivating factor

in the defendants’ actions. Antoine v. Ramos, 497 F. App’x 631, 634 (7th Cir. 2012).

Plaintiff’s assault on prison staff is not considered protected First Amendment activity. Wisconsin

v. Mitchell, 508 U.S. 476, 484 (1993) (“[A] physical assault is not by any stretch of the imagination

expressive conduct protected by the First Amendment.”); McElroy v. Unknown Parties, No. 14-

cv-01020, 2014 WL 5396172, at *2 (S.D. Ill. Oct. 21, 2014) (dismissing claim because “restraining

guard” and “physical assault” are not activities “protected under the First Amendment”).

Accordingly, Plaintiff fails to state a retaliation claim and Count 5 will be dismissed without

prejudice.

Count 6

Plaintiff claims Lawrence blocked his access to the courts because he denied emergency

review of his grievance and returned the grievance to him for submission to his counselor. He

contends this subjected him to further rounds of a defective and inexhaustible grievance process.

Prisoners have the right to petition the government for redress of grievances, which includes access

to the courts to present their complaints. Bridges v. Gilbert, 557 F.3d 541, 553 (7th Cir. 2009).

Here, Plaintiff’s access to the courts has not been impeded by the alleged actions, as the

unavailability of administrative remedies is not a bar to potential litigants bringing their claims.

See Ross v. Blake, 136 S.Ct. 1850, 1860 (2016) (an inmate’s lack of exhaustion may be excused if

the administrative remedies process is “unavailable” to a prisoner, such as when prison officials

thwart or obstruct the grievance process); Hill v. Snyder, 817 F.3d 1037, 1041 (7th Cir. 2016)

(“exhaustion is not required when the prison officials responsible for providing grievance forms

refuse to give a prisoner the forms necessary to file an administrative grievance”). Because

Plaintiff fails to state a colorable access to courts claim, Count 6 will be dismissed without

prejudice.

Count 7

Plaintiff’s allegation that Lawrence retaliated against him for the Pinckneyville staff assault

fails to state a claim as previously explained. He also alleges that Lawrence denied expedited

review of his emergency grievance in retaliation for the filing of that grievance. These allegations

are insufficient to state a retaliation claim because Plaintiff did not suffer a deprivation; the

grievance process was still available to him. If a grievance is denied emergency review, the

prisoner may resubmit the grievance as non-emergent in accordance with the standard grievance

process. See 20 ILL.ADMIN.CODE § 504.840. Although Plaintiff states that Lawrence’s actions

subjected him to a defective and inexhaustible grievance process, he fails to explain how or why

the process was defective or inexhaustible or how he suffered a deprivation likely to deter protected

speech. Accordingly, Count 7 will be dismissed without prejudice.

Count 8

Plaintiff claims that Lawrence’s failure to grant emergency review of his grievance showed

deliberate indifference to his Eighth Amendment rights. Generally, the denial or mishandling of

a grievance – standing alone – do not violate the United States Constitution. Owens v. Hinsley,

635 F.3d 950, 953 (7th Cir. 2011) (“[T]he alleged mishandling of [a prisoner's] grievance by

persons who otherwise did not cause or participate in the underlying conduct states no claim.”);

George v. Abdullah, 507 F.3d 605, 609 (7th Cir. 2007) (“Ruling against a prisoner on an

administrative complaint does not cause or contribute to the violation.”). That said, an official

may be subject to liability if he or she “knows about unconstitutional conduct and facilitates,

approves, condones, or ‘turn[s] a blind eye’ to it.” Perez v. Fenoglio, 792 F.3d 768, 781 (7th Cir.

2015).

There are no facts alleged which indicate that Lawrence had knowledge of ongoing

unconstitutional conduct. He reviewed one grievance in which Plaintiff complained of two

attempted assaults that had not resulted in any harm, and there was no tangible threat to Plaintiff’s

safety described. As such, Count 8 fails to state a claim for relief and will be dismissed without

prejudice.

Counts 9 and 10

The allegations in the Complaint are sufficient to allow the Eighth Amendment claims

stated in Counts 9 and 10 to proceed against Defendants Morris and John Doe 14.

Count 11

The allegations that Defendant Morris and John Doe 14 retaliated against Plaintiff for filing

a grievance and a lawsuit against Menard officials are sufficient to state a retaliation claim. See

Gomez v. Randle, 680 F.3d 859, 866 (7th Cir. 2012) (grieving about prison conditions is protected

First Amended activity); Babcock v. White, 102 F.3d 267, 276 (7th Cir. 1996) (filing lawsuits is

protected First Amended activity). Count 11 will be allowed to proceed against Morris and John

Doe 14.

Motion for Temporary Restraining Order and Preliminary Injunction

Plaintiff seeks a temporary restraining order (TRO) and preliminary injunction ordering

his transfer from Menard to another facility and his security status changed to protective custody

status. (Doc 3). The purported bases for Plaintiff’s request are fear for his safety and the potential

for retaliation based on the incidents that occurred in July 2019 and December 2019, the filing of

his grievance in August 2019, the filing of a lawsuit against Menard officials in November 2019,

and the filing of this lawsuit. Plaintiff also makes vague references to other retaliation and threats

by prison officials but fails to provide any details.

A TRO may issue 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). To obtain

preliminary injunctive relief, a plaintiff must establish that (1) his underlying case has a reasonable

likelihood of success on the merits, (2) no adequate remedy at law exists, and (3) he will suffer

irreparable harm without the injunction. Turnell v. CentiMark Corp., 796 F.3d 656, 661 (7th Cir.

2015). If a plaintiff establishes these three elements, the Court must then balance the harm to each

party and to the public interest from granting or denying the injunction. Id. at 662. Mandatory

preliminary injunctions – those requiring an affirmative act – are “cautiously viewed and sparingly

issued,” because they require the court to command a defendant to take a particular action.

Graham v. Med. Mut. of Ohio, 130 F.3d 293, 295 (7th Cir. 1997) (citing Jordan v. Wolke, 593

F.2d 772, 774 (7th Cir. 1978)).

Plaintiff has not made a clear showing of immediate or irreparable injury that will result

without a TRO or preliminary injunction. His allegations pertain to past conduct and speculation

regarding the potential for retaliation. He has failed to articulate any specific or imminent threat

to his safety. “[A] speculative fear of injury is not a ground for an injunction.” Wright v. Miller,

561 F.App’x 551, 554 (7th Cir. 2014). Accordingly, the motion for TRO and preliminary

injunction (Doc. 3) is DENIED.

Identification of Unknown Defendants

Plaintiff will have the opportunity to engage in limited discovery to ascertain the identity

of the unknown defendants. See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 832 (7th

Cir. 2009). Frank Lawrence as the Warden Lawrence of Menard Correctional Center will be added

in his official capacity to respond to discovery aimed at identifying the unknown defendants.

Guidelines for discovery will be set by the undersigned judge. Once the names of the unknown

defendants are discovered, Plaintiff shall file a motion to substitute the newly identified defendants

in place of the generic designations in the case caption and throughout the Complaint.

Disposition

IT IS HEREBY ORDERED that Count 1 is SEVERED into a new case against John Doe

1 and Jane Doe 1. The Clerk of Court is DIRECTED to TERMINATE John Doe 1 and Jane Doe

1 as parties in this case. Further, the Clerk of Court is DIRECTED to file the following documents

into the newly severed case:

1) The Complaint (Doc. 1);

2) Motion for Leave to Proceed in forma pauperis (Doc. 2); and

3) This Memorandum and Order.

IT IS ORDERED that the following claims will proceed in this case: Count 2 against

John Doe 2; Count 3 against Waterman, Cartwright, John Does 4-13, and Jane Does 2-3; Count

4 against Anderson and John Doe 3; and Counts 9, 10, and 11 against Morris and John Doe 14.

IT IS ORDERED that Counts 5, 6, 7, and 8 are DISMISSED without prejudice for failure

to state a claim. Defendant Frank Lawrence, in his individual capacity, is DISMISSED without

prejudice for failure to state a claim. The Clerk of Court is DIRECTED to terminate Frank

Lawrence in his individual capacity as a party in this case and add Frank Lawrence, Warden of

Menard Correctional Center, in his official capacity, for purposes of responding to discovery aimed

at identifying the Doe Defendants.

IT IS ORDERED that the Clerk of Court shall prepare for Waterman, Cartwright,

Anderson, Morris, Lawrence (official capacity only), and, once identified, John Does 2-14 and

Jane Does 2-3: (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 to 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.

Service shall not be made on the Doe Defendants until such time as Plaintiff has identified

each Defendant by name in a properly filed motion for substitution of party. Plaintiff is ADVISED

that it is his responsibility to provide the Court with the name and service address for these

individuals.

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). As the Warden of

Menard Correctional Center is in the case solely for discovery purposes, he need not respond to

the Complaint. The Warden only needs to enter his appearance. He will receive further instruction

on discovery at a later date. Pursuant to Administrative Order No. 244, Defendants need only

respond to the issues stated in this Merit Review Order.

If judgment is rendered against Plaintiff, and the judgment includes the payment of costs

under Section 1915, Plaintiff will be required to pay the full amount of the costs, regardless of

whether his application to proceed in forma pauperis is granted. See 28 U.S.C. § 1915(f)(2)(A).

IT IS ORDERED that the Motion for Temporary Restraining Order and Preliminary

Injunction (Doc. 3) is DENIED.

Plaintiff is ADVISED that he is under a continuing obligation to keep the Clerk of Court

and the 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: February 12, 2020

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’ Answers, 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.