Sangathit v. Lawrence

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

PHONAKONE SANGATHIT, #R43542, )

)

Plaintiff, )

)

vs. ) Case No. 19−cv–00860−JHL

)

FRANK LAWRENCE, )

JONES, )

RESSE, )

KRAMER, )

MCCARTHY, )

EMALDI, )

JOHN DOE #1, )

JOHN DOE #2, )

JOHN DOE #3, )

JANE DOE #1, )

GEE, )

RATHKE, and )

LAUER, )

)

Defendants. )

MEMORANDUM AND ORDER

JOAN H. LEFKOW, United States District Judge:1

Plaintiff Phonakone Sangathit, an inmate of the Illinois Department of Corrections

(“IDOC”) currently incarcerated at Menard Correctional Center (“Menard”), brings this civil

rights action pursuant to 42 U.S.C. § 1983 for alleged deprivations of his constitutional rights.

Sangathit alleges defendants subjected him to cruel and unusual punishment in retaliation for

filing a grievance following the restriction of his visitation rights. Following an initial screening

1 Sitting by designation pursuant to 28 U.S.C. § 294(c) and Administrative Order No. 252 of the United

States District Court for the Southern District of Illinois.

of the complaint pursuant to 28 U.S.C. § 1915A, Sangathit was allowed to proceed with the

following claims:

Count 1: Eighth Amendment claim against Resse, Kramer, McCarthy, Gee,

and John Doe #2 for using excessive force in the process of forcing

Sangathit to submit to an anal cavity search and keeping him

handcuffed for long periods of time.

Count 2: Eighth Amendment claim against Resse, Kramer, McCarthy, Gee,

and John Doe #1 for cruel and unusual punishment by subjecting

Sangathit to a strip search and rectal cavity search.

Count 3: Fourth Amendment claim against Resse, Kramer, McCarthy, Gee,

and John Doe #1 for conducting an unreasonable rectal cavity

search.

Count 4: Eighth Amendment claim against John Doe #2 for failing to

intervene and protect Sangathit from excessive force and the rectal

cavity search.

Count 5: Eighth Amendment claim of deliberate indifference to a serious

medical need against John Doe #2 for denying Sangathit medical

treatment following the rectal cavity search.

Count 6: Eighth Amendment claim of unconstitutional conditions of

confinement against Resse, Kramer, McCarthy, Gee, Rathke, and

Emaldi for keeping Sangathit in the filthy cell in the health care unit

with no running water or hygiene products and the lights on twenty-

four hours a day for four days.

Count 7: First Amendment claim against Resse, Kramer, McCarthy, Gee,

John Doe #2, John Doe #3, Rathke, and Emaldi for retaliating

against Sangathit for filing a grievance against Assistant Warden

Jones.

Count 10: Intentional infliction of emotional distress claim in violation of

Illinois state law against Resse, Gee, Kramer, McCarthy, Rathke,

and Emaldi.

Count 13: First Amendment right to freedom of association and/or Fourteenth

Amendment right to due process claim against Assistant Warden

Jones for denying Sangathit his visitation rights.

(Dkt. 8, p. 17). The Court dismissed Counts 8, 9, 11, 12, 14, and 15. Sangathit was granted

leave to file an amended complaint so that he could provide more factual detail and properly

identify defendants for Counts 7, 8, and 14. Sangathit filed an amended complaint on January

16, 2020, which is now before the Court for preliminary review under 28 U.S.C. § 1915A.2

Generally, the allegations as set forth in the Court’s preliminary review order (Dkt. 8)

remain substantially similar; thus, the Court declines to recount the claims alleged in the

amended complaint. Sangathit, however, adds the following allegations and information: (1)

while in the health care unit, Sangathit asked nurse Jane Doe #1 to turn the lights off because he

could not sleep, and she said she was told to leave the light on by Major Rathke and Emaldi

because of something that Sangathit had done; (2) Rathke authorized Sangathit to be held in the

suicide watch cell in the health care unit for an additional twenty-four hours on March 23, 2019,

and Emaldi authorized another twenty-four hours in the health care unit on March 24, 2019; (3)

while in segregation, Sangathit informed Gee, Lauer, and McCarthy of the conditions of his cell,

but did not receive a response; and (3) Lauer issued Sangathit a false investigation ticket.

Upon review of the amended complaint, the Court finds that the additional facts do not

change the claims brought in Counts 1-6, 10, and 13. For the reasons stated in the Court’s initial

merit review order, those claims still survive preliminary review. (See Dkt. 8). Sangathit,

however, repleads and adds allegations regarding Counts 7, 8, 14, and 15 and adds additional

defendants Jane Doe #1 and Lauer. Based on the facts alleged in the amended complaint, the

Court designates new Counts 7, 8, 14, and 15 as follows:

Count 7: First Amendment claim against Reese, Kramer, McCarthy, Gee,

John Doe #2, John Doe #3, Rathke, Emaldi, Lauer, and Jane Doe #1

2 Pursuant to Section 1915A, any portion of the amended complaint that is legally frivolous or 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).

for retaliating against Sangathit for filing a grievance against

Assistant Warden Jones.

Count 8: Eighth Amendment claim of deliberate indifference against John

Doe #1, John Doe #2, and Jane Doe #1 for failing to provide medical

treatment for Sangathit’s rash while in the health care unit.

Count 14: Eighth Amendment claim of unconstitutional conditions of

confinement against Gee, Lauer, and McCarthy for placing

Sangathit in a filthy cell in segregation with no cleaning supplies.

Count 15: Fourteenth Amendment due process claim against Lauer for the

issuance of a false disciplinary ticket.

The parties shall 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 amended

complaint but not addressed in this Order is considered dismissed without prejudice as

inadequately pleaded under Twombly.3

Count 7

Sangathit realleges that: (1) Resse, Kramer, McCarthy, and Gee subjected him to cruel

and unusual punishment by using excessive force, conducting bodily searches, shaking down his

cell, and holding him in a filthy cell with no running water or hygiene products; (2) John Doe #2

left him handcuffed for over two hours; (3) Rathke and Emaldi left him in the filthy cell and

ordered the lights to remain on at all times; and (4) John Doe #3 lied about seeing him place an

object in his rectum― all because he filed a grievance on Assistant Warden Jones. Accordingly,

Sangathit has set forth sufficient allegations to proceed on Count 7 against Resse, Kramer,

McCarthy, Gee, John Doe #2, John Doe #3, Rathke, and Emaldi.

3 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”).

In the amended complaint, Sangathit adds the allegations that nurse Jane Doe #1 knew

that Sangathit was being held in the health care unit for nonmedical reasons, as she was informed

to leave the lights on in his cell for something he had done to Assistant Warden Jones. (Dkt. 22,

pp. 7, 16). He states that she “failed to intervene to prevent immediate and ongoing retaliation

and abuse” and that her actions were motivated by his First Amendment activities. (Id. at p. 16).

He also claims that Lauer falsified an investigation ticket and placed him in segregation in

retaliation for filing the grievance against Assistant Warden Jones. These facts are sufficient for

Count 7 to also proceed against Jane Doe #1 and Lauer. See Gomez v. Randle, 680 F.3d 859, 866

(7th Cir. 2012) (citation omitted).

Count 8

Sangathit states that while in the health care unit he developed a rash on his buttocks,

back, and legs from being in the dirty cell. (Dkt. 22, p. 7). He was given small packs of

hydrocortisone cream, but when he tried to see a doctor for more cream John Doe #1, John Doe

#2, and Jane Doe #1 did not place him in the doctor’s call line to have the rash treated. (Id. at p.

17). He scratched his skin so much that it bled, but John Doe #1, John Doe #2, and Jane Doe #1

still did not add him to the doctor’s call line. As Sangathit’s “skin condition ‘arguably’

constitute[s] a serious medical need,” and he claims that defendants “failed to take appropriate

steps to mitigate a known risk of substantial harm[,]” Count 8 will proceed against John Doe #1,

John Doe #2, and Jane Doe #1. Muse v. Justus, 505 F. App’x 598, 599 (7th Cir. 2013).

Count 14

Sangathit claims that after being released from the health care unit, he was taken to

segregation and placed in another cell by Lauer that had not been cleaned, with human waste in

the toilet and in a milk carton by the toilet, mold and feces on the walls, and a wet, urine-soaked

mattress. He notified Gee, Lauer, and McCarthy of the conditions of the cell and requested

cleaning supplies and a different mattress, but received no response. (Dkt. 22, pp. 8, 19). These

allegations are enough to survive screening against Lauer, Gee, and McCarthy. See Rhodes v.

Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392 (1981); see also Vinning-El v. Long, 482 F.3d 923,

924 (7th Cir. 2007); Cobian v. McLaughlin, 717 F. App’x 605, 611 (7th Cir. 2017) (“Prison

officials violate their constitutional responsibility to provide inmates with the minimal

necessities of life when they disregard over a significant period an inmate’s request to be

relieved from exposure to human feces.”).

Count 15

Sangathit alleges that Lauer placed him in segregation and prepared a false investigation

ticket to cover up the retaliation against him. (Dkt. 22, p. 19). Because of the false ticket, he

was held in segregation for twenty-nine days. (Id. at p. 9). Upon release, he was not issued a

disciplinary ticket.

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, 115 S.Ct. 2293,

(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.

Sangathit claims he was held in segregation for only twenty-nine days in unsanitary

conditions. Because “[a] confinement of that length does not implicate a liberty interest[,]”

Count 15 will be dismissed. Obriecht v. Raemisch, 565 F. App'x 535, 539-40 (7th Cir. 2014)

(ruling that seventy-eight days in “deplorable conditions” did not implicate a liberty interest, but

that plaintiff might have challenged the conditions of confinement while in segregation) (citing

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

MOTION TO APPOINT COUNSEL

Sangathit has filed a third motion asking the court to recruit counsel on his behalf. On his

second attempt to seek counsel, the Court found that he demonstrated indigency and that he had

made reasonable efforts to retain counsel on his own.4 The Court determined, however, that

Sangathit was competent to proceed pro se at that time. (Dkt. 19).

In his third motion for recruitment of counsel, Sangathit restates that he has only a ninth

grade education and has difficulty reading and understanding big words. He claims he has had

assistance by other inmates with every one of his previous pleadings. Finally, he states that he is

in administrative detention, limiting his movement and ability to visit the law library. (Dkt. 23).

The Court has inherent authority to recruit counsel to ensure the orderly prosecution of

litigation in the District. When considering whether counsel is necessary to assist a pro se

plaintiff, the Court must inquire whether “the plaintiff appear[s] to be competent to try [the case]

himself and, if not, [whether] the presence of counsel [would make] a difference in the

outcome.” Farmer v. Haas, 990 F.2d 319, 322 (7th Cir. 1993); Greeno v. Daley, 414 F.3d 645,

658 (7th Cir. 2005); Pruitt v. Mote, 503 F.3d 647 (7th Cir. 2007). Given the totality of the

4 In evaluating Sangathit’s Motion for Recruitment of Counsel, the Court applies the factors discussed in

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

circumstances, the Court finds that the difficulty of this case exceeds this particular indigent

plaintiff’s capacity as a layperson to litigate this matter. This case involves several defendants

and different types of claims, which could result in extensive and complex discovery. See Dewitt

v. Corizon, Inc., 760 F.3d 654, 657-58 (7th Cir. 2014). Therefore, the motion is GRANTED.

The Court will randomly select counsel through the Case Management/Electronic Case

Filing (“CM/ECF”) system to represent Sangathit in pursuing his claims in this case only.

IDENTIFICATION OF UNKNOWN DEFENDANTS

& OFFICIAL CAPACITY CLAIMS

Sangathit will be allowed to proceed with claims against the newly added defendant Jane

Doe #1. This defendant must be identified with particularity, however, before service of the

complaint can be made. Sangathit will have the opportunity to engage in limited discovery to

ascertain her identity. Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 832 (7th Cir.

2009). Once the name of the defendant is discovered, Sangathit shall file a motion to substitute

the newly identified defendant in place of the generic designation in the case caption and

throughout the complaint. In that vein, the warden of Menard Correctional Center, Lawrence,

will remain a party in this action, in his official capacity only, and shall be responsible for

responding to discovery aimed at identifying the unknown defendant.

Finally, the court notes that Sangathit has again brought his claims against the defendants

in their official and individual capacities. As previously stated in the original merit review order

of the complaint, state officials named in their official capacities may not be sued for monetary

damages. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71, 109 S. Ct. 2304 (1989). Therefore,

the official capacity claims directed against the remaining defendants will be dismissed with

prejudice. As Warden Lawrence will remain a party in the case, in his official capacity, he is the

most appropriate official to address any injunctive relief that might be ordered. See Delaney v.

DeTella, 256 F.3d 679, 687 (7th Cir. 2001).

DISPOSITION

IT IS HEREBY ORDERED that the amended complaint survives screening pursuant to

28 U.S.C. § 1915A (Dkt. 22). Counts 1-6, 10, and 13 will proceed as provided in the preliminary

review order of the original complaint. (Dkt. 8). Count 7 will proceed as to Resse, Kramer,

McCarthy, Gee, John Doe #2, John Doe #3, Rathke, Emaldi, Lauer, and Jane Doe #1, Count 8

will proceed as to John Doe #1, John Doe #2, and Jane Doe #1, Count 14 will proceed as to

Lauer, Gee, and McCarthy, and Count 15 is DISMISSED without prejudice. The claims against

Jones, Rathke, Gee, McCarthy, Kramer, Resse, Lauer, Emaldi, John Doe #1, John Doe #2, John

Doe #3, and Jane Doe #1 in their official capacity are DISMISSED without prejudice.

The Clerk shall prepare for Lauer: (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 amended complaint, the original merit review

order (Dkt. 8), and this Memorandum and Order to defendant’s place of employment as

identified by Sangathit.

Service shall not be made on the unknown defendant Jane Doe #1, until such time until

such time as Sangathit has identified her by name in a properly filed motion for substitution.

Sangathit is ADVISED that it is his responsibility to provide the court with the names and

service address for these individuals. Lawrence will be responsible for responding to discovery

requests aimed at identifying the unknown defendants propounded in accord with this discovery

order.

Defendants Resse, Jones, Kramer, McCarthy, Emaldi, Gee, Rathke, Lawrence

(official capacity only), and Lauer are ORDERED to timely file an appropriate responsive

pleading to the amended complaint and shall not waive filing a reply pursuant to 42 U.S.C.

§ 1997e(g).

Pursuant to Administrative Order No. 244, defendants should respond to the issues stated

in the original merit review order (Dkt. 8) and in this merit review order. Defendants are

ADVISED that the Court does not accept piecemeal answers.

IT IS FURTHER ORDERED that the motion for the recruitment of counsel is

GRANTED. (Dkt. 23). For the reasons stated, and in accordance with 28 U.S.C. § 1915(e)(1)

and Local Rule(s) 83.1(i) and 83.9(b), attorney Elizabeth M. Wilkins of Schlichter Bogard and

Denton, is ASSIGNED to represent Plaintiff Sangathit in this civil rights case. On or before

April 14, 2020, assigned counsel shall enter her appearance in this case. Attorney Wilkins is

free to share responsibilities with an associate who is also admitted to practice in this district

court. Assigned counsel, however, must enter the case and shall make first contact with

Sangathit, explaining that an associate may also be working on the case. Sangathit should wait

for his attorney to contact him in order to allow counsel an opportunity to review the court file.

The Clerk of Court is DIRECTED to transmit this Order and copies of the docket sheet

and Docs. 1, 8, and 22 to attorney Wilkins. The electronic case file is available through the CM-

ECF system.

Now that counsel has been assigned, Sangathit shall not personally file anything in this

case, except a pleading that asks that he be allowed to have counsel withdraw from

representation. If counsel is allowed to withdraw at the request of Sangathit, there is no

guarantee the Court will appoint other counsel to represent him.

Counsel is ADVISED to consult Local Rules 83.8-83.14 regarding pro bono case

procedures.

Sangathit and his counsel are ADVISED that, because Sangathit is proceeding in forma

pauperis, if there is a monetary recovery in this case (either by verdict or settlement), any unpaid

out-of-pocket costs must be paid from the proceeds. See SDIL-LR 3.1(c)(1). If there is no

recovery in the case (or the costs exceed any recovery), the Court has the discretion to reimburse

expenses.

Section 2.6 of this Court’s Plan for the Administration of the District Court Fund

provides for a degree of reimbursement of pro bono counsel’s out-of-pocket expenses, as funds

are available. The Plan can be found on the Court’s website, as well as the form motion for out-

of-pocket expenses and an Authorization/Certification for Reimbursement. Any motion for

reimbursement must be made within 30 days from the entry of judgment, or reimbursement will

be waived. See SDIL-LR 83.13. The funds available for this purpose are limited, however, and

counsel should use the utmost care when incurring out-of-pocket costs. In no event will funds be

reimbursed if the expenditure is found to be without a proper basis. The Court has no authority

to pay attorney’s fees in this case. No portion of a partial filing fee assessed pursuant to 28

U.S.C. § 1915 will be reimbursed. Counsel may be reimbursed for PACER fees for this case.

The district court has entered into an agreement with attorney James P. Chapman and the Illinois

Institute for Community Law to consult with lawyers on issues in these cases, including

substantive and procedural questions (both legal and practical) and dealing with the client. Mr.

Chapman can be reached by phone at (312) 593-6998 or email at JamesPChapman@aol.com.

His services are available to counsel free of charge, as long as counsel is representing a prisoner

pro bono on a case in the district. In addition, the Court’s website, www.ilsd.uscourts.gov,

includes a guide for attorneys which is available as a resource. It is listed under “Rules and

Forms” as “Guide for Attorneys Recruited to Represent Plaintiffs in Section 1983 Cases.” The

Court encourages appointed counsel to consult it and Mr. Chapman as needed.

As of this date, Sangathit’s contact information ts:

PHONAKONE SANGATHIT, #R43542

Menard Correctional Center

711 Kaskaskia Street

P.O. Box 1000

Menard, IL 62259

IT IS FURTHER ORDERED that pursuant to Administrative Order 252 of the United

States District Court for the Southern District of Illinois, the case is REASSIGNED to Chief

District Judge Nancy Rosenstengel.

IT IS SO ORDERED.

DATED: March 31, 2020

SOaN H. LEFKOW

United States District Judge

12