Daniels v. Menard Correctional Center

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

DARRIAN DANIELS, )

#K91046, )

)

Plaintiff, )

)

vs. ) Case No. 19-cv-00394-RJD

)

DUMSDORFF, and )

MILLS, )

)

Defendants. )

ORDER

DALY, Magistrate Judge:

Plaintiff Darrian Daniels, an inmate of the Illinois Department of Corrections currently

incarcerated at Menard Correctional Center (“Menard”), brings this action for deprivations of his

constitutional rights pursuant to 42 U.S.C. § 1983. Based on the allegations in the Complaint, the

Court designated the following claims from Plaintiff’s original complaint:

Count 1: Eighth Amendment excessive force claim against Defendants

Dumsdorff and Mills for assaulting Plaintiff on November 30, 2018.

Count 2: Eighth Amendment claim against Defendants Dumsdorff and Mills

for threatening Plaintiff and making racist comments before and

after November 30, 2018.

Count 3: Eighth Amendment claim for the second assault on November 30,

2018.

Count 4: Eighth Amendment conditions of confinement claim for being

denied yard, showers, legal calls, and food trays before the assaults

on November 30, 2018.

Count 5: Eighth Amendment conditions of confinement for being placed in a

cell with no working water or toilet after the assaults on November

30, 2018.

Count 6: Eighth Amendment deliberate indifference claim based on denial of

medical care for Plaintiff’s injured left wrist after the assaults on

November 30, 2018.

Following review of the Complaint pursuant to 28 U.S.C. § 1915A, Plaintiff was allowed to

proceed only on Count 1 and Counts 2-6 were dismissed.

The Court entered an Initial Scheduling and Discovery Order which provided that Plaintiff

shall have until January 6, 2020, to file a motion for leave to amend the complaint to include any

additional claims or parties. (Doc. 27). Plaintiff filed a timely Motion for Leave to File Amended

Complaint (Doc. 14) and a proposed Amended Complaint seeking to add claims and defendants.

Under Federal Rule of Civil Procedure 15(a)(1)(A), “a party may amend its pleading once

as a matter of course within [] 21 days after serving it.” Otherwise, Rule 15(a)(2) provides that “a

party may amend its pleading only with the opposing party’s written consent or the court’s leave.”

Rule 15(a)(2) also provides that “the court should freely give leave when justice so requires.”

Nonetheless, the Amended Complaint is still subject to review under 28 U.S.C. § 1915A.1

Accordingly, prior to granting leave to amend, the Court will screen the proposed Amended

Complaint.

The Amended Complaint

Plaintiff makes the following allegations in the Amended Complaint: Plaintiff alleges that

there is a history of him being assaulted while in handcuffs and being called racist names. He

alleges he was transferred to Menard on August 1, 2018 by IDOC Director Baldwin and the

Transfer Coordinator, John/Jane Doe, for retaliatory purposes. He was placed in a cell that was

sealed off from “air intake” with no working vents and refused his fan. The temperatures were

1 Pursuant to Section 1915A, any portion of the First Amended 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).

over 100 degrees. He was also refused boxers, t-shirts, socks, wash cloths, soap, toothpaste, and

sheets. He was forced to endure these conditions for 50 days.

Plaintiff filed an emergency grievance with Warden Lashbrook but never received a

response. He also sent letters to IDOC Director Baldwin and the John/Jane Doe Transfer

Coordinator. Two unknown internal affairs staff members came to his cell and told him that if he

came out of his cell and reported any Menard staff members, they would spread the word that he

was an informant and he would be killed. Plaintiff reported the threat to Warden Lashbrook and

IDOC Director Baldwin.

Plaintiff continued to write grievances and letters to Warden Lashbrook and IDOC Director

Baldwin of the threats, racist name calling, refusal of yard and showers, and refusal of food trays

before he was assaulted by Dumsdorff and Mills and called racist names by Mills. He was refused

responses to his grievances and refused another interview with internal affairs. Because the

grievances and letters were ignored, he was assaulted on November 30, 2018.

Before and after the assault on November 30, 2018, Plaintiff was threatened and called

racist names by prison guards Dumsdorff and Mills. On the date of the assault, Dumsdorff came

to Plaintiff’s cell and told him to cuff up to be taken on call pass for clothing for a court writ. After

Plaintiff cuffed up, Dumsdorff stated that he and Mills were going to “play like your door is broken

so we can burn you on your call pass.” Dumsdorff made a racist comment and referenced a lawsuit

filed by Plaintiff. Dumsdorff and Mills then pretended the cell door would not open. Dumsdorff

told Plaintiff to uncuff, uncuffed his right wrist, and then yanked his still handcuffed left hand

through the chuck hole. Dumsdorff twisted and pulled his hand trying to break it while calling him

racist names. Mills also made racist comments and told Dumsdorff to break Plaintiff’s wrist.

The cell house Lieutenant came to Plaintiff’s cell, and Plaintiff informed him of the assault

and racist name calling by Dumsdorff and Mills. The Lieutenant told him Dumsdorff and Mills

would not handle his call pass.

Based on the allegations in the Amended Complaint, the Court designates the following

counts:

Count 1: Eighth Amendment excessive force claim against Defendants

Dumsdorff and Mills for assaulting Plaintiff on November 30,

2018.

Count 2: Eighth Amendment claim against Defendants Dumsdorff and

Mills for threatening Plaintiff and making racist comments

before and after November 30, 2018.

Count 3: First Amendment retaliation claim against Baldwin and

John/Jane Doe Transfer Coordinator for a retaliatory transfer

to Menard.

Count 4: Eighth Amendment conditions of confinement claim for

Plaintiff’s placement in a cell with no ventilation and extreme

temperatures and being refused boxers, t-shirts, socks, wash

cloths, soap, toothpaste, and sheets for 50 days.

Count 5: First Amendment retaliation claim against Lashbrook,

Baldwin, and John/Jane Doe Transfer Coordinator for their

involvement in having two unknown internal affairs staff

members threaten Plaintiff if he were to report any Menard

staff members.

Count 6: Eighth Amendment conditions of confinement claim against

Lashbrook and Baldwin for ignoring Plaintiff’s complaints that

he was denied yard, showers, legal calls, and food trays by

Dumsdorff and Mills before the assaults on November 30, 2018.

Count 7: Eighth Amendment failure to protect claim against Lashbrook

and Baldwin for ignoring Plaintiff’s complaints that he was

being threatened by Dumsdorff and Mills prior to the assaults

on November 30, 2018.

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

Discussion

Count 1

The Eighth Amendment protects prisoners from being subjected to cruel and unusual

punishment. Brown v. Budz, 398 F.3d 904, 909 (7th Cir. 2005). “Correctional officers violate the

Eighth Amendment when they use force not in a good faith effort to maintain or restore discipline,

but maliciously and sadistically for the very purpose of causing harm.” Wilborn v. Ealey, 881 F.3d

998, 1006 (7th Cir. 2018) (internal citations and quotation marks omitted). An Eighth Amendment

claim may be stated where a guard incites an assault. McClanahan v. Butler, No. 16-CV-340-

SMY, 2016 WL 4154910, at *3 (S.D. Ill. Aug. 5, 2016) (citing Northington v. Jackson, 973 F.2d

1518, 1525 (10th Cir. 1992) (Eighth Amendment claim stated where guard “intended to do harm

to [a prisoner] by inciting inmates to beat him”)). Further, a guard may be held liable where he

witnesses an incident of excessive force against a prisoner, but fails to intervene to stop the

unconstitutional conduct. See Byrd v. Brishke, 466 F.2d 6, 11 (7th Cir. 1972); Lanigan v. Village

of East Hazel Crest, Ill., 110 F.3d 467, 477 (7th Cir. 1997); Yang v. Hardin, 37 F.3d 282, 285 (7th

Cir. 1994) (collected cases); Archie v. City of Racine, 826 F.2d 480, 491 (7th Cir. 1987). The

Complaint sets forth sufficient allegations to proceed on the Eighth Amendment excessive force

claim in Count 1 against Defendants Dumsdorff and Mills.

Count 2

In general, allegations of verbal abuse and threats are insufficient grounds for relief under

2 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).

Section 1983. See Beal v. Foster, 803 F.3d 356, 358 (7th Cir. 2015) (“[M]ost verbal harassment

by jail or prison guards does not rise to the level of cruel and unusual punishment.”); DeWalt v.

Carter, 224 F.3d 607, 612 (7th Cir. 2000) (“Standing alone, simple verbal harassment does not

constitute cruel and unusual punishment, deprive a prisoner of a protected liberty interest or deny

a prisoner equal protection of the laws.”). However, verbal harassment that causes psychological

pain may amount to cruel punishment under the Eighth Amendment. Beal, 803 F.3d at 357-58.

Plaintiff does not describe psychological pain or the type of verbal harassment sufficient to

constitute cruel punishment. Count 2 will, therefore, be dismissed without prejudice.

Count 3

To establish a claim of retaliation for exercising free speech, an inmate must allege 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 defendant’s decision to take the retaliatory action. Bridges

v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009) (citing Woodruff v. Mason, 542 F.3d 545, 551 (7th

Cir. 2008)) (other citations omitted).

Here, Plaintiff makes only a bare accusation that he was transferred back to Menard on

August 1, 2018 for retaliatory purposes by IDOC Director John Baldwin and John/Jane Doe

transfer coordinator. Plaintiff has not alleged what conduct he engaged in to spur the transfer, and

the Court is unable to infer what First Amendment activity Plaintiff may have engaged in on which

he relies for this claim. Accordingly, Count 3 will be dismissed without prejudice.

Count 4

The allegations that form the basis of this claim are not attributed to any particular

individual, including any named Defendant. To state a § 1983 claim against an individual or entity,

Plaintiff must specifically identify them, by name or Doe designation. See Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 55 (2007); FED. R. CIV. P. 8(a)(2). Accordingly, Count 4 is dismissed

without prejudice.

Count 5

As the basis of this claim, Plaintiff alleges that due to his filing of an emergency grievance

to Lashbrook to which he never received any response, and submission of letters to Director

Baldwin and the transfer coordinator, two unknown internal affairs staff members came to his cell

and told Plaintiff if he reported any staff members that work at Menard they were going to tell

other inmates Plaintiff is a “stool pigeon” so he can be killed. As a result of this threat, Plaintiff

alleges he was forced to stay in his cell so Defendant would not think he was refusing to cooperate.

As set forth above, to establish a claim of retaliation for exercising free speech, an inmate

must allege 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 defendant’s decision to take the

retaliatory action. Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009) (citing Woodruff v. Mason,

542 F.3d 545, 551 (7th Cir. 2008)) (other citations omitted).

Plaintiff’s allegations against Defendants Lashbrook, Baldwin, and the unknown transfer

coordinator fail to state a claim. Specifically, Plaintiff’s complaint fails to connect the named

Defendants to the internal affairs officers’ threats, which the Court presumes is the alleged

deprivation. Indeed, there is no allegation that Defendants themselves engaged in any Plaintiff

action against Plaintiff. Plaintiff also does not allege that his protected activity was “at least a

motivating factor” in Defendants’ decision to retaliate. For these reasons, Count 5 is dismissed

without prejudice.

Count 6

Prison officials have a duty under the Eighth Amendment to provide humane conditions of

confinement, including the provision of adequate food, clothing, shelter, and medical care. Farmer

v. Brennan, 511 U.S. 825, 832-33 (1994). Courts evaluating claims of unconstitutional conditions

of confinement must consider: (1) whether the defendant prison officials acted with the requisite

state of mind (the subjective component) and (2) whether the alleged deprivations were sufficiently

serious to rise to the level of a constitutional violation (the objective component). Wilson v. Seiter,

501 U.S. 294, 298 (1991).

The allegations in the proposed complaint, along with the attached exhibits, are sufficient

to state an Eighth Amendment conditions of confinement claim against Defendants Lashbrook and

Baldwin. Plaintiff alleges these Defendants were notified of issues concerning the denial of yard,

showers, legal calls, and food trays, but failed to take any action. Because the conditions of which

Plaintiff complained may rise to the level of a constitutional violation, Plaintiff will be allowed to

proceed on Count 6 against Defendants Lashbrook and Baldwin.

Count 7

“In its prohibition of ‘cruel and unusual punishments,’ the Eighth Amendment places

restraints on prison officials, who may not, for example, use excessive physical force against

prisoners.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (citing Hudson v. McMillian, 503 U.S.

1 (1992)). Similarly, the Eighth Amendment imposes duties on prison officials who must provide

humane conditions of confinement and must “take reasonable measures to guarantee the safety of

inmates.” Id. (quoting Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)). In order to state a §

1983 claim against prison officials for failure to protect, a plaintiff must establish: (1) that he was

“incarcerated under conditions posing a substantial risk of serious harm” and (2) that the

defendants acted with “deliberate indifference” to his health or safety. Santiago v. Walls, 599 F.3d

749, 756 (7th Cir. 2010) (quoting Farmer, 511 U.S. at 834)).

The allegations in the proposed complaint, along with the attached exhibits, are sufficient

to state an Eighth Amendment failure to protect claim against Defendants Lashbrook and Baldwin.

Plaintiff alleges these Defendants were notified of threats made by Dumsdorff and Mills prior to

the assaults that occurred on November 30, 2018, and failed to take action. Acordingly, Plaintiff

will be allowed to proceed on Count 7 against Defendants Lashbrook and Baldwin.

Disposition

IT IS HEREBY ORDERED that, pursuant to Rule 15, and after reviewing the Amended

Complaint, Plaintiff’s Motion for Leave to File Amended Complaint (Doc. 28) is GRANTED IN

PART. The Clerk of Court is DIRECTED to docket Plaintiff’s proposed Amended Complaint as

the Amended Complaint in this action. Although the entirety of Plaintiff’s Amended Complaint

will be filed, he will only be proceeding on Counts 1, 6, and 7, as described above.

IT IS HEREBY ORDERED that Count 1 will proceed against Defendants Dumsdorff

and Mills. Counts 2, 3, 4, and 5 are DISMISSED without prejudice. Counts 6 and 7 will proceed

against Defendants Baldwin and Lashbrook.

The Clerk of Court shall prepare for Defendants John Baldwin and Jacqueline Lashbrook:

(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.

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.

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 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: June 17, 2020

s/ Reona J. Daly

Hon. Reona J. Daly

United States Magistrate 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.