Alvarez v. Thompson

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

JESSE ALVAREZ, R67182, )

)

Plaintiff, )

)

vs. ) Case No. 19-cv-1163-SMY

)

CHRISTOPHER THOMPSON, )

JON M. URASKI, )

MAJOR CLELAND, )

MAJOR LIVELY, )

WARDEN LOVE, )

CAROL A. MCBRIBE, )

MARCUS MYERS SR., )

S. MERCIER, )

SARA JOHNSON, )

ROB JEFFERS, and )

JOHN DOE )

)

Defendants. )

MEMORANDUM AND ORDER

YANDLE, District Judge:

Plaintiff Jesse Alvarez, an inmate of the Illinois Department of Corrections (“IDOC”)

currently incarcerated at Pontiac Correctional Center, brings this action pursuant to 42 U.S.C. §

1983 for alleged deprivations of his constitutional rights while he was housed at Pinckneyville

Correctional Center (“Pinckneyville”). He alleges retaliation related to his refusal to become an

informant, the denial of due process during a resulting disciplinary hearing, unequal treatment, and

civil conspiracy. Plaintiff seeks monetary damages and injunctive relief.

This case is now before the Court for preliminary review of the Complaint 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).

The Complaint

Plaintiff makes the following allegations in his Complaint (Doc. 1): In November 2017,

Plaintiff was transferred from Menard Correctional Center to Pinckneyville. (Id., p. 11). He is a

former member of the Latin Kings street gang (Security Threat Group or “STG” in prison

terminology). When Plaintiff was admitted to Pinckneyville, he told Uraski and other prison

officials that he had renounced his membership.1 (Id.). Uraski and another Internal Affairs (“IA”)

officer told him they were aware of his former affiliation and history of filing grievances, and that

if he continued to file grievances, they would make his time “miserable.” (Id., p. 12). When asked

by Uraski and the IA officer if he would work for IA providing information on his former gang,

Plaintiff refused. (Id.). Uraski and the IA officer began to harass Plaintiff by calling him down to

the IA office and having his cell shaken down more often that non-Hispanic inmates. (Id.).

On November 12, 2018, Plaintiff was given an investigative disciplinary ticket by Uraski

that was signed off on by Cleland and Lively and was taken to segregation. (Id., p. 13). He was

then told that Uraski wanted to know if he had reconsidered working for IA or “do you like your

new cell?” (Id.). Plaintiff again refused.

On November 13, 2018, Plaintiff was issued a full disciplinary ticket by Uraski, again

signed off on by Cleland and Lively. (Id.). He was not given an opportunity to sign the ticket or

request witnesses to be called at the subsequent hearing. (Id.). Uraski or another officer stopped

1 Plaintiff uses the anonymous designation “John Doe” to refer to a number of different prison staff and correctional

officials with no indication of which individual he is referring to at any given time. As discussed below, this is not

adequate pleading. The Court will not use Plaintiff’s Doe designation in the factual summary.

by his cell each day to threaten him with segregation until he agreed to work for IA. (Id., p. 14).

Plaintiff spoke to Warden Love on November 19, 2018 regarding a missing signature of a hearing

investigator and Love said he would have someone come and talk to him about it. (Id., pp. 14-15).

No one came before the hearing which took place that day. (Id., p. 15).

The disciplinary hearing was conducted by McBribe and Myers. (Id.). Plaintiff presented

several factual defenses, including his renunciation of Latin Kings membership. (Id). However,

the subsequent report only states that he admitted he is a Latin King. (Id.). Plaintiff also requested

that questions be asked of the confidential informants cited in the disciplinary ticket, but that was

refused. (Id., p. 16). When Plaintiff asked how the Adjustment Board could judge the credibility

of the confidential informants without independent investigation, McBribe responded “Because

Intel said you are guilty.” (Id.). The Adjustment Board found Plaintiff guilty and recommended

sanctions including one year in segregation and transfer to a “Level One” prison. (Id., pp. 16-17).

Thompson signed off on the report and punishment.

Plaintiff subsequently filed a grievance over the disciplinary charge and hearing which was

reviewed and denied by Mercier, a corrections counselor. (Id., p. 18). Thompson again concurred.

(Id.). Plaintiff’s appeal of the grievance denial was in turn denied in a letter signed by Johnson,

although the Administrative Review Board recommended that the punishments be reduced to 6

months of segregation, 6 months of C Grade and 6 months of commissary restriction. (Id., p. 30).

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

claims in this pro se action into the following Counts:

Count 1: First Amendment claim against Uraski for retaliating against

Plaintiff for refusing to become an informant.

Count 2: Fourteenth Amendment equal protection claim against Uraski

for increased incidents of summoning him to IA and having his

cell shaken down compared to non-Hispanic inmates.

Count 3: Fourteenth Amendment due process claim against Uraski,

Thompson, Cleland, Lively, Love, McBribe, Myers, Mercier

and Johnson.

Count 4: Civil Conspiracy claim against all Defendants.

Count 5: Fourteenth Amendment due process claim regarding the IDOC

Disciplinary Policy and Procedure and IDOC Grievance Policy

and Procedure.

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 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.2

Preliminary Dismissals

Plaintiff names John Doe as a defendant, but merely uses the designation to generically

refer to Pinckneyville corrections officers. He specifically refers to Doe as “corrections officers”

and states that Doe “may be male or female and may be employed at other correctional centers.”

(Doc. 1, p. 6). While a plaintiff may use the “John Doe” designation to refer to specific individuals

whose names are unknown, a plaintiff will run afoul of the pleading standards Twombly and

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) by merely asserting that an indefinite number of

correctional officers and staff has violated his constitutional rights. See Brooks v. Ross, 578 F.3d

574, 580 (7th Cir. 2009) (finding the phrase “one or more of the Defendants” did not adequately

connect specific defendants to illegal acts, and thus failed to adequately plead personal

involvement).

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”).

At this point, there is no way to determine which of an indefinite number of corrections

officers is being labelled “John Doe” in a given sentence, or whether it is the same corrections

officer previously labelled “John Doe.” A plaintiff must make plausible allegations against

individuals, describing the “who, what, why, where, and how” that form the basis of the claim

against that person. See FED. R. CIV. P. 8(a)(2). Accordingly, “John Doe” and any claims against

them are dismissed without prejudice.

Discussion

Count 1

To prevail on his First Amendment retaliation claim, Plaintiff 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). Plaintiff has adequately stated a

claim against Uraski. The question of whether refusing to become an informant for prison officials

is “protected activity” under the First Amendment is currently ambiguous in this Circuit. See Clark

v. Reed, 772 F. App'x 353, 355 (7th Cir. 2019). The Court therefore cannot say that Plaintiff’s

refusal does not qualify as protected activity. See Burns v. Martuscello, 890 F.3d 77, 93 (2d Cir.

2018) (recognizing a “right not to snitch”). The punishments Plaintiff allegedly received for

refusing to cooperate were sufficient to deter such activity and Plaintiff allegedly being questioned

about whether he was ready to work with IA while in segregation suggest that his refusal was at

least a motivating factor. As such, Count 1 will proceed.

Count 2

In order to state a claim for denial of equal protection under the Fourteenth Amendment,

Plaintiff must show he “is a member of a protected class,” that he “is otherwise similarly situated

to members of the unprotected class,” and that he “was treated differently from members of the

unprotected class.” Brown v. Budz, 398 F.3d 904, 916 (7th Cir. 2005) (quoting McNabola v.

Chicago Transit Auth., 10 F.3d 501 (7th Cir. 1993)). Plaintiff alleges that he is Hispanic and that

he was treated differently from similarly situated non-Hispanic prisoners with respect to getting

called to IA and having his cell searched more often by Uraski. Count 2 will therefore proceed.

Count 3

Plaintiff has adequately stated a claim for violation of his Fourteenth Amendment due

process rights with regard to the disciplinary ticket and hearing, but not against Love, Mercier or

Johnson. Standing alone, the receipt of a false disciplinary ticket does not give rise to a due process

violation. This is because “due process safeguards associated with prison disciplinary proceedings

are sufficient to guard against potential abuses[,] [and a] hearing before a presumably impartial

Adjustment Committee terminates an officer's possible liability for the filing of an allegedly false

disciplinary report.” Hadley v. Peters, 841 F. Supp. 850, 856 (C.D. Ill. 1994), aff'd, 70 F.3d 117

(7th Cir. 1995) (citations omitted). See also Hanrahan v. Lane, 747 F.2d 1137, 1140 (7th

Cir.1984). Due process safeguards associated with prison disciplinary hearings include: (1)

advance written notice of the charges; (2) the opportunity to appear before an impartial hearing

body to contest the charges; (3) the opportunity to call witnesses and present documentary

evidence as a defense (if prison safety allows and subject to the discretion of correctional officers);

and (4) a written statement summarizing the reasons for the discipline imposed. See Wolff v.

McDonnell, 418 U.S. 539, 563-69 (1974). Additionally, the decision of the adjustment committee

must be supported by “some evidence.” Scruggs v. Jordan, 485 F.3d 934, 941 (7th Cir. 2007).

Here, Plaintiff has stated a cognizable Fourteenth Amendment due process claim against

Uraski, Cleland, Lively and Warden Thompson. He alleges that Uraski, Cleland and Lively

submitted a false disciplinary report, and that Myers and McBribe failed to afford the due process

safeguards that Wolff requires; the alleged statement “because Intel said you are guilty” casts doubt

on the unbiased nature of the Adjustment Committee, whether the written statement summarizes

the actual reason for the discipline imposed and whether the decision was supported by “some

evidence.” And, Warden Thompson’s review and approval of the finding and recommendation

plausibly suggests personal involvement on his part.

However, Plaintiff states no viable claim against Love, Mercier or Johnson. Section 1983

liability requires personal involvement in or personal responsibility for the deprivation of a

constitutional right. Knight v. Wiseman, 590 F.3d 458, 462-63 (7th Cir. 2009) (citation omitted).

Plaintiff does not allege that Love participated in any aspect of the claimed deprivations. He and

Plaintiff allegedly spoke about one technical aspect of the disciplinary ticket shortly before the

Adjustment Committee hearing, and Love said he would have someone come speak to Plaintiff

about it. That is not personal participation.

As to Mercier and Johnson, “[p]rison officials who simply processed or reviewed inmate

grievances lack personal involvement in the conduct forming the basis of the grievance.” Owens

v. Evans, 878 F.3d 559, 563 (7th Cir. 2017). Ruling against Plaintiff in an administrative appeal

does not amount to approving of or turning a blind eye to constitutional violations that allegedly

occurred in the disciplinary hearing. George v. Smith, 507 F.3d 605, 609–10 (7th Cir. 2007) (“Only

persons who cause or participate in the violations are responsible. Ruling against a prisoner on an

administrative complaint does not cause or contribute to the violation.”). Neither Mercier nor

Johnson otherwise caused or contributed to the constitutional deprivation, and therefore cannot be

liable. Count 3 will proceed as to Uraski, Thompson, Cleland, Lively, McBribe, and Myers, but

will be dismissed without prejudice as to Love, Mercier and Johnson.

Count 4

Allegations of a conspiracy are held to a higher pleading standard than other allegations.

Geinosky v. City of Chicago, 675 F.3d 743, 749 (7th Cir. 2012). In order to state a civil conspiracy

claim, “the plaintiff must [plead facts sufficient to] show that (1) the individuals reached an

agreement to deprive him of his constitutional rights, and (2) overt acts in furtherance actually

deprived him of those rights.” Beaman v. Freesmeyer, 776 F.3d 500, 510 (7th Cir. 2015).

Plaintiff has adequately pled a conspiracy by Uraski, Cleland and Lively to submit a bogus

disciplinary ticket. However, he does not provide facts sufficient to allege that any of the

remaining defendants had agreed to a scheme to deprive him of his constitutional rights, even if

that was allegedly the eventual effect of their actions. “An allegation of parallel conduct and a

bare assertion of conspiracy will not suffice. Without more, parallel conduct does not suggest

conspiracy, and a conclusory allegation of agreement at some unidentified point does not supply

facts adequate to show illegality. Hence ... they must be placed in a context that raises a suggestion

of a preceding agreement, not merely parallel conduct that could just as well be independent

action.” Twombly, 550 U.S. at 556–557 (2007). See also Cooney v. Rossiter, 583 F.3d 967, 971

(7th Cir. 2009) (applying Twombly in a civil rights conspiracy claim and affirming dismissal of

conspiracy claim resting on conclusory statement that defendants were aiding others in a civil

rights violation). The mere fact that Myers and McBribe credited the assertions in the disciplinary

ticket, and that Thompson, Mercier and Johnson left the basic findings of the Adjustment

Committee undisturbed does not suggest agreement with the alleged underlying scheme.

Similarly, the fact that the Adjustment Committee’s report used nearly the same language as the

disciplinary ticket (and that Mercier in turn used similar language) is not adequate to suggest

preceding agreement on a scheme. Finally, Love’s alleged conduct gives no indication of

conspiratorial agreement. Therefore, Count 4 will proceed as to Uraski, Cleland and Lively, but

will be dismissed without prejudice as to Myers, McBribe, Thompson, Mercier, Johnson and Love.

Count 5

Plaintiff asserts in conclusory fashion that the IDOC Disciplinary Policy and Procedure

and IDOC Grievance Policy and Procedure are “unconstitutional as applied to him, as well as all

similarly situated inmates in IDOC…as applied by Defendants.” (Doc. 1, p. 20). A pleading that

offers “labels and conclusions or a formulaic recitation of the elements of a cause of action will

not do. Nor does a complaint suffice if it tenders naked assertion[s] devoid of further factual

enhancement.” Iqbal, 556 U.S. at 678 (quotations omitted).3 Count 5 will therefore be dismissed

without prejudice.

Preliminary Injunction

Plaintiff requests a “preliminary and permanent injunction” ordering that “Jeffers”4 protect

him from future retaliation, discrimination and harassment, and implementation of “new policies

an procedures for Disciplinary and Grievance process[.]” (Doc. 1, p. 22). To obtain preliminary

injunctive relief, Plaintiff must demonstrate that (1) his underlying case has some likelihood of

success on the merits; (2) no adequate remedy at law exists; and (3) he will suffer irreparable harm

3 Additionally, any constitutional challenge to the Grievance Policy in particular is doomed, as inmates do not have a

constitutional right to an effective grievance procedure. Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996).

4 In reality Rob Jeffreys, Acting Director of IDOC.

without the relief. Merritte v. Kessel, 561 F. App’x 546, 548 (7th Cir. 2014) (citing Woods v. Buss,

496 F.3d 620, 622 (7th Cir. 2007)).

As to Plaintiff’s request for protection, anticipation of reprisal is not sufficient to support

injunctive relief. “[A] speculative fear of injury is not a ground for an injunction.” Wright v.

Miller, 561 F. App'x 551, 554 (7th Cir. 2014) (citing City of Los Angeles v. Lyons, 461 U.S. 95,

104–05 (1983)). With respect to his request to implement new disciplinary and grievance policies,

Plaintiff has not pled any facts that suggest he has no adequate remedy at law or that he will suffer

irreparable harm. Additionally, to comply with the Prison Litigation Reform Act, a preliminary

injunction must be “narrowly drawn, extend no further than necessary to correct the harm . . . ,”

and “be the least intrusive means necessary to correct that harm.” 18 U.S.C. § 3626(a)(2).

Unilaterally overhauling the Illinois prison system’s disciplinary and grievance policies is not a

narrowly-drawn remedy. Plaintiff’s requests for preliminary injunctive relief are DENIED

without prejudice.

Motions for Counsel and for Service at Government Expense

In his Motion for Counsel (Doc. 3), Plaintiff indicates that he has sent a number of letters

to attorneys seeking representation. However, the Court’s authority under 28 U.S.C. § 1915 to

request an attorney is limited to indigent parties. 28 U.S.C. § 1915(e)(1). Plaintiff is not

proceeding in forma pauperis and has not demonstrated that he otherwise qualifies as indigent.

Even if Plaintiff did qualify as indigent, appointment of counsel would still be denied at

this point in the case. Plaintiff appears to have the ability to pursue this action pro se at this time.

Plaintiff’s pleadings demonstrate an ability to construct coherent sentences and relay information

to the Court, and does not cite any significant impairments to his abilities other than limited legal

knowledge. Therefore, Plaintiff’s Motion for Counsel (Doc. 3) is DENIED without prejudice.

Plaintiff may renew his request for the recruitment of counsel at a later date.

Plaintiff has also filed a Motion for Service at Government Expense under Federal Rule of

Civil Procedure 4(c)(3). (Doc. 4). The Motion is GRANTED, as effecting service privately from

prison would likely pose a problem under the 90 day limit imposed by Rule 4(m).

Disposition

IT IS ORDERED that Defendants John Doe, Mercier, Johnson and Love are

DISMISSED from this action without prejudice. The Clerk of Court is DIRECTED to

TERMINATE these individuals from the Court’s Case Management/Electronic Case Filing

(“CM/ECF”) system and to correct the case caption to reflect Rob Jeffreys (official capacity only)

as a Defendant instead of “Rob Jeffers.”

Plaintiff’s Motion for Recruitment of Counsel (Doc. 3) is DENIED without prejudice.

Plaintiff’s Motion for Service at Government Expense (Doc. 4) is GRANTED.

The Clerk of Court shall prepare for Defendants Uraski, Thompson, Cleland, Lively,

McBribe, Myers and Rob Jeffreys (official capacity only): (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 the defendant’s place of employment as identified by Plaintiff. If 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 the defendant,

and the Court will require the defendant to pay the full costs of formal service, to the extent

authorized by the Federal Rules of Civil Procedure.

If a defendant can no longer 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,

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.

Defendant is ORDERED to timely file an appropriate responsive pleading to the

Complaint and shall not waive filing a reply pursuant to 42 U.S.C. Section 1997e(g). Pursuant

to Administrative Order No. 244, Defendant 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).

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: March 16, 2020

/s/ Staci M. Yandle

STACI M. YANDLE

U.S. District Judge

Notice

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.