# Sangathit v. Lawrence

> District Court, S.D. Illinois · March 31, 2020

URL: https://www.frixlaw.com/law-library/cases/10151825

## Case

- **Court:** District Court, S.D. Illinois
- **Decided:** March 31, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10151825. Public record. Not legal advice.