Summers v. Waggoner

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

DAMAJZAE SUMMERS, #Y18337, )

)

Plaintiff, )

vs. ) Case No. 3:19-cv-01338-SMY

)

STEPHANIE WAGGONER, )

DAVE WHITE, )

JOHN R. BALDWIN, )

DARIN WELLS, and )

C/O SHIELDS, )

Defendants. )

MEMORANDUM AND ORDER

YANDLE, District Judge:

Plaintiff Damajzae Summers, an inmate of the Illinois Department of Corrections

(“IDOC”), filed the instant lawsuit pursuant to 42 U.S.C. § 1983 for alleged deprivations of his

constitutional rights. He claims violations of the First, Eighth and Fourteenth Amendments, the

Prisoner Rape Elimination Act (“PREA”), and IDOC policies, rules, and regulations. He 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 (Doc. 1): Correctional Officer

Shield entered section 4 with a homemade sex toy and paraded the toy around in a sexual manner

asking inmates to perform sexual acts. Shields left the section for approximately 5-10 minutes,

returned, and went into a different section to sell the toy for a box of cakes. After receiving the

cakes, Shields went to the officer’s bubble with the toy. He again returned to the section and asked

who the toy belong to. To be funny, Plaintiff responded, “it’s mine.” Officer Shield then came in

between Plaintiff’s bunk and another bunk and began poking at the toy with a badge pen. Plaintiff

threw up his hands to “block” it. Fluid was then released and got on Plaintiff and two other

inmates. The substance shot out and was on Plaintiff’s hands, arms, and feet. He asked Officer

Shields if he was going to clean up the mess and Shields responded “no” and walked away

laughing. The next morning, Plaintiff attempted to call the PREA hotline. He was told PREA had

to be on his approved call list. He then contacted a lieutenant and told him what had occurred, and

Internal Affairs was contacted. The next day, Shield came in the section and made a joke saying,

“Lucy had her period.” Plaintiff felt uncomfortable.

Plaintiff wrote a grievance because he did not feel internal affairs did a thorough

investigation into Shield’s unbecoming conduct or reviewed video and audio recordings as

required by department policy. Lieutenant Bogart told Plaintiff it was not a serious matter and

should not be treated as a PREA case. Plaintiff has written five emergency grievances and none

of them have been responded to. Counselor Wells’ response to his grievance did not address the

predatorial acts of Shields. Warden Waggoner and the Administrative Review Board (ARB) found

his claims to be substantiated but took no action.

Plaintiff is in fear for his safety. There are no cameras, which furthers his fears of being in

danger of being sexually abused by a correctional officer. Plaintiff has been harassed and

threatened by other officers while trying to tell them about what happened. He was fired from his

job in the dining hall for no reason.

Based on the allegations in the Complaint, the Court designates the following claims in this

pro se action:

Count 1: Fourteenth Amendment due process claim against Baldwin, White,

Waggoner, and Wells for failure to investigate Plaintiff’s complaint.

Count 2: Fourteenth Amendment claim against White, Waggoner, and Wells

for improper handling of Plaintiff’s grievance.

Count 3: Claim for violation of IDOC policy, rules, and regulations, including

Shields’s failure to conduct himself in a professional manner.

Count 4: Eighth Amendment harassment claim against Shields.

Count 5: First Amendment retaliation claim for Plaintiff being fired from his

job in the dining hall in response to grievances and a PREA

complaint.

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.1 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 that is

plausible on its face.”).

Preliminary Dismissals

Plaintiff refers to individuals in his statement of claim who are not named as defendants in

the case caption. Federal Rule of Civil Procedure 10(a) requires the names of all parties to be

included in the case caption. Therefore, any claims intended against the individuals not identified

in the case caption are dismissed without prejudice. See Myles v. United States, 416 F.3d 551,

551–52 (7th Cir. 2005) (holding pro se Complaint failed to state a claim against individual

mentioned in body of Complaint but not specified in the caption).

To the extent Plaintiff seeks to hold IDOC Director Baldwin and Warden Waggoner

1 In his request for relief, Plaintiff seeks criminal proceedings against Shields. This is not a remedy available in a

Section 1983 action.

responsible for the acts and/or omissions of IDOC employees, there is no respondent superior or

“supervisor liability” under 42 U.S.C. § 1983, see Chavez v. Illinois State Police, 251 F.3d 612,

651 (2001), and those claims are dismissed.

Discussion

Count 1

With respect to the alleged failure to investigate Plaintiff’s complaints, “a state’s inmate

grievance procedures do not give rise to a liberty interest protected by the due process clause.”

Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1995). In fact, the failure of state prison

officials to follow their own procedures does not, of itself, violate the Constitution. Maust v.

Headley, 959 F.2d 644, 648 (7th Cir. 1992); Shango v. Jurich, 681 F.2d 1091 (7th Cir. 1982).

Therefore, prison officials incur no liability under § 1983 if they fail or refuse to investigate a

prisoner’s complaints or grievances. Geiger v. Jowers, 404 F.3d 371, 374 (5th Cir. 2005) (inmate’s

claim that prison officials failed to investigate his grievances that mailroom and security staff was

stealing his property was indisputably meritless because inmate did not have a due process right

to an investigation). Because inmates do not have a due process right to have their claims

investigated at all, Plaintiff fails to state a claim. See Watson v. Dodd, No. 16-CV-1217-NJR, 2017

WL 120951, at *6 (S.D. Ill. Jan. 12, 2017); Wilkins v. Illinois Dep’t of Corr. No. 8-cv-732-JPG,

2009 WL 1904414, at *9 (S.D. Ill. July 1, 2009). Accordingly, Count 1 will be dismissed.

Count 2

“Prison grievance procedures are not mandated by the First Amendment and do not by their

very existence create interests protected by the Due Process Clause, and so the alleged mishandling

of [a prisoner’s] grievances by person who otherwise did not cause or participate in the underlying

conduct states no claim.” Owens v. Hinsley, 635 F.3d 950, 953 (7th Cir. 2011); see also Owens v.

Evans, 878 F.3d 559, 563 (7th Cir. 2017) (“Prison officials who simply processed or reviewed

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

Additionally, “[r]uling against a prisoner on an administrative complaint does not cause or

contribute to the violation.” George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007).

With respect to the alleged failure to follow the PREA mandate to fully investigate

Plaintiff’s allegations of sexual assault, it is true that prison officials have a duty under the

Constitution to protect prisoners from assault. Farmer v. Brennan, 511 U.S. 825 (1994). However,

the Constitution does not require officials to investigate or otherwise correct wrongdoing after it

has happened. Whitlock v. Brueggemann, 682 F.3d 567, 588-89 (7th Cir. 2012); Strong v. David,

297 F.3d 646, 650 (7th Cir. 2002). “Further, PREA does not give prisoners a personal right to sue

for an official’s failure to comply with the Act’s requirements.” Watson v. Dodd, No. 16-CV-

1217-NJR, 2017 WL 120951, at *6 (S.D. Ill. Jan. 12, 2017); Garness v. Wisconsin Dep’t of Corr.,

No. 15-cv-787-BBC, 2016 WL 426611, at *2 (W.D. Wis. Feb. 3, 2016) (citing Ross v. Gossett,

No. 15-CV-309-SMY-PMF, 2016 WL 335991, at *4 (S.D. Ill. Jan. 28, 2016)). See also J.K.J. v.

Polk Cty., No. 15-cv-428-WMC, 2017 WL 28093, at *12 (W.D. Wis. Jan. 3, 2017) (“[T]here is no

private right of action under the PREA.”).

For these reasons, Plaintiff’s allegations that his grievances and PREA complaint were

mishandled fail to state a claim and, therefore, Count 2 will be dismissed.

Count 3

Section 1983 “protects plaintiffs from constitutional violations, not violations of state laws

or ... departmental regulations and police practices.” Scott v. Edinburg, 346 F.3d 752, 760 (7th

Cir.2003); see also See Guajardo-Palma v. Martinson, 622 F.3d 801, 806 (7th Cir. 2010) (“a

violation of a state law is not a ground for a federal civil rights suit); Ashley v. Snyder, 739 N.E.2d

897, 902 (Ill.App.Ct. 2000) (prison regulations were “never intended to confer rights on inmates

or serve as a basis for constitutional claims”). As such, Plaintiff’s allegations that Defendants

violated state administrative laws and/or IDOC policies, rules, and regulations fails to state a claim.

Count 3 will be dismissed.

Count 4

Allegations of verbal abuse and threats are generally insufficient grounds for relief under

§ 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 physical or 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. Therefore, Count 4 will be dismissed.

Count 5

Plaintiff implies that he was fired from his job in the dining hall either as retaliation or

harassment. But he does not allege that any defendant was responsible for him being fired or

otherwise associate this claim with any defendant. Accordingly, Count 5 will be dismissed.

Disposition

Plaintiff’s Complaint is DISMISSED without prejudice for failure to state a claim upon

which relief may be granted. Plaintiff is GRANTED leave to file a First Amended Complaint on

or before November 30, 2020. The First Amended Complaint is subject to review pursuant to 28

U.S.C. § 1915A. Should Plaintiff file a First Amended Complaint, it is strongly recommended

that he use the civil rights complaint form designed for use in this District. He should label the

form “First Amended Complaint” and use the case number for this action (No. 19-cv-01338-

SMY). Further, Plaintiff should identify each defendant in the case caption and include sufficient

allegations against each defendant to describe what the defendant did or failed to do to violate his

constitutional rights, see DiLeo v. Ernst & Young, 901 F.2d 624, 627 (7th Cir. 1990) (a successful

complaint generally alleges “the who, what, when, where, and how ....”), and as much as possible,

include the relevant facts in chronological order, inserting each defendant’s name where necessary

to identify the actors and each defendant’s actions. An amended complaint supersedes and

replaces the original complaint, rendering the original complaint void. See Flannery v. Recording

Indus. Ass’n of Am., 354 F.3d 632, 638 n. 1 (7th Cir. 2004). Therefore, the Court will not accept

piecemeal amendments to the original Complaint – the First Amended Complaint must stand on

its own, without reference to any previous pleading, and Plaintiff must re-file any relevant exhibits

he wishes the Court to consider. To facilitate Plaintiff’s compliance with this Order, the Clerk of

Court is DIRECTED to mail Plaintiff a civil rights complaint form.

If Plaintiff fails to file his First Amended Complaint within the allotted time or consistent

with the instructions set forth in this Order, the case will be dismissed with prejudice for failure to

comply with a court order and/or for failure to prosecute his claims. Fed. R. Civ. P. 41(b); Ladien

v. Astrachan, 128 F.3d 1051 (7th Cir. 1997); Johnson v. Kamminga, 34 F.3d 466 (7th Cir. 1994);

28 U.S.C. § 1915(e)(2). The dismissal will count as one of Plaintiff’s three allotted “strikes” under

28 U.S.C. § 1915(g).

Plaintiff is ADVISED that if judgment is rendered against him and the judgment includes

the payment of costs under 28 U.S.C. §1915, he 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).

Plaintiff is further 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: October 28, 2020

s/ Staci M. Yandle_____

STACI M. YANDLE

United States District Judge