Brickhouse v. Lashbrook

FOR THE SOUTHERN DISTRICT OF ILLINOIS

DAMEKO BRICKHOUSE,

#R05052,

Plaintiff,

Case No. 20-cv-00056-SPM

v.

JACQUELINE LASHBROOK,

JOHN DOE,

C/O WILSON, and

C/O JOHNSON,

Defendants.

MEMORANDUM AND ORDER

MCGLYNN, District Judge:

Plaintiff Dameko Brickhouse, also known as Koko Brickhouse, an inmate of the Illinois

Department of Corrections who is currently incarcerated at Pontiac Correctional Center, brings

this civil action pursuant to 42 U.S.C. § 1983 for violations of her constitutional rights that

occurred while at Menard Correctional Center (“Menard”). Brickhouse claims that while in

protective custody in 2018 she was retaliated against by staff and attacked in the shower by another

inmate. She is seeking monetary damages and injunctive and declaratory relief.

The Complaint is now before the Court for preliminary review pursuant to 28 U.S.C. §

1915A. Under Section 1915A, any portion of a complaint that is legally frivolous, malicious, fails

to state a claim upon which relief may be granted, or requests money damages from a defendant

who by law is immune from such relief must be dismissed. 28 U.S.C. § 1915A(b). At this juncture,

the factual allegations of the pro se Complaint are to be liberally construed. Rodriguez v. Plymouth

Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009). The Court must also consider whether any

claims are improperly joined and subject to severance or dismissal. See George v. Smith, 507 F.3d

605, 607 (7th Cir. 2007).

Brickhouse alleges the following: She is a transgender person diagnosed with “gender

identity disorder.” (Doc. 1, p. 6). In May 2018, she was granted protective custody and held in the

protective custody unit due to her transgender status. Correctional Officers Johnson and Wilson

worked the protective custody unit in 2018 and had a history of harassing prisoners and using

prisoners to intimidate and assault other prisoners. Inmates in protective custody wrote numerous

complaints and grievances to the warden at Menard, Lashbrook, and the major of the North Lowers

Cellhouse, John Doe, about Johnson and Wilson, but Lashbrook and John Doe turned a blind eye

to the complaints. (Id. at p. 7).

While Brickhouse was in protective custody, Johnson began retaliating against Brickhouse

because she had filed a Prison Elimination Act (“PREA”) complaint against Wilson. Johnson told

Brickhouse that she made a mistake by filing a PREA complaint on his friend and that she “would

pay for it.” (Id. at p. 6).

Johnson retaliated against Brickhouse by refusing her lunch trays and making verbal threats

and sexual comments towards Brickhouse. (Id. at p. 7). Johnson also wrote Brickhouse a false

disciplinary report, and, as a result, Brickhouse was sent to segregation.

On May 21, 2018, while Brickhouse was showering in a single occupant shower designated

for inmates who are transgender, Johnson let an inmate, Cory “Playboy” Jones, out of his cell so

that Jones could “forcefully have sex” with Brickhouse. When Jones entered the shower, he told

Brickhouse he was going to have sex with her. Out of fear, Brickhouse complied with Jones’s

demands and performed oral sex. (Id. at p. 7). Brickhouse later reported the incident. (Id. at p. 7-

8). Jones was taken to the segregation unit under investigative status, but no one from the Internal

Affairs Department came to interview Brickhouse about the assault. (Id. at p. 8). Brickhouse was

eventually transferred to the protective unit at Pontiac Correctional Center.

In the Complaint, Brickhouse alleges that (1) she previously wrote a PREA complaint

about Correctional Officer Wilson; (2) Wilson worked in the protective custody unit in 2018; and

(3) Wilson had a history of mistreating inmates. Brickhouse does plead any allegations or facts,

however, regarding Wilson’s involvement in the violation of her constitutional rights. See Matz v.

Klotka, 769 F.3d 517, 528 (7th Cir. 2014). Accordingly, Wilson is dismissed without prejudice.

DISCUSSION

Based on the allegations of the Complaint, the Court finds it convenient to designate the

following Counts:

Count 1: Eighth Amendment claim against Johnson for allowing Inmate

Jones to leave his cell so that Jones could sexually assault

Brickhouse.

Count 2: Eighth Amendment claim against Lashbrook and John Doe for

failing to protect Brickhouse from Johnson and Inmate Jones.

Count 3: First Amendment claim against Johnson for retaliating against

Brickhouse for filing a PREA complaint against another correctional

officer.

Count 4: Fourteenth Amendment due process claim against Johnson for

issuing Brickhouse a false disciplinary ticket.

Count 5: Fourteenth Amendment equal protection claim against Defendants.

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.1

Count 1

The Eighth Amendment prohibits the wanton and unnecessary infliction of pain upon

1 See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (7 Cir. 2007).

prisoners.” Pinkston v. Madry, 440 F.3d 879, 889 (7th Cir. 2006) (quoting Farmer v. Brennan, 511

U.S. 825, 833 (1994)). Brickhouse’s claims that Johnson intentionally allowed another inmate,

who had a history of sexual assault, out of his cell so that he could harm Brickhouse is sufficient

for Count 1 to survive screening.

Count 2

“In order to state a claim under the Eighth Amendment for failure to protect, a plaintiff

bears the burden of establishing prison officials were “deliberately indifferent” to the fact that an

inmate was in serious peril of being harmed.” Pinkston, 440 F. 3d at 889 (citing Board v. Farnham,

394 F.3d 469, 478 (7th Cir.2005); Henderson v. Sheahan, 196 F.3d 839, 845 (7th Cir.1999)). See

also Pope v. Shafer, 86 F. 3d 90, 92 (7th Cir. 1996).

Here, Brickhouse alleges that Lashbrook and John Doe were notified by complaints and

grievances filed by other inmates in protective custody that Correctional Officer Johnson was

harassing prisoners and “using” Inmate Jones to intimidate and assault other inmates in the

protective custody unit. (Doc. 1, p. 7). They also were aware that Jones has a history of sexual

assaults. (Id. at p. 8). Despite this knowledge, Lashbrook and John Doe failed to act, disregarding

the risk to Brickhouse’s safety. These allegations establish a viable claim for failure to protect, and

Count 2 shall proceed against Lashbrook and John Doe.

Count 3

Brickhouse claims that because she filed a PREA complaint against Correctional Officer

Wilson, Johnson harassed her, denied her lunch trays, made threats and sexual comments towards

her, and wrote her a false disciplinary ticket. These allegations are sufficient for Count 3 to proceed

against Johnson for retaliation. See, e.g., Gomez v. Randle, 680 F.3d 859, 866 (7th Cir. 2012)

(prison officials may not retaliate against inmates for filing grievances, exercising First

Count 4

A disciplinary ticket issued falsely does not, standing alone, violate the Fourteenth

Amendment if the inmate receives procedural due process in the disposition of the ticket.

Hanrahan v. Lane, 747 F.2d 1137, 1140 (7th Cir. 1984). See also Hadley v. Peters, 841 F. Supp.

850, 856 (C.D. Ill. 1994), aff’d, 70 F.3d 117 (7th Cir. 1995). Brickhouse claims that Johnson wrote

her a false disciplinary ticket in retaliation for filing a PREA complaint but does not allege the

disciplinary hearing she received for the ticket issued was procedurally deficient in any way.

Therefore, a claim for procedural due process violations for the issuance of the ticket is dismissed.

While these allegations are not sufficient to establish a procedural due process claim

against Johnson, the Seventh Circuit has stated that [i]ssuing false and unjustified disciplinary

charges can amount to a violation of substantive due process if the charges were in retaliation for

the exercise of a constitutional right.” Black v. Lane, 22 F.3d 1395, 1402–03 (7th Cir. 1994). Count

4 will, therefore, proceed against Johnson for violating Brickhouse’s substantive due process

rights.

Count 5

The Equal Protection Clause of the Fourteenth Amendment protects against governmental

discrimination on the basis of race, gender, national origin, or religion. See also Whitaker by

Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1051 (7th Cir. 2017)

(discrimination based on a person’s transgender status or discrimination based on sex stereotyping

may also be actionable as an equal protection claim). It also prohibits a government official from

singling out a person for different treatment for no rational reason. “To state a class-of-one equal

protection claim, an individual must allege that she was ‘intentionally treated differently from

others similarly situated and that there is no rational basis for the difference in treatment.’”

Olech, 528 U.S. 562, 564 (2000)).

Brickhouse claims that Defendants “deliberately targeted” her because she is African

American and transgender. (Doc. 1, p. 8). She states that staff at Menard are predominately

Caucasian and have a history of harassing and retaliating against African American inmates.

Brickhouse has not provided, however, any factual assertions connecting Defendants’ conduct and

her race and transgender status or demonstrating “intentional or purposeful discrimination” on the

part of Defendants. Nabozny v. Podlesny, 92 F.3d 446, 453-54 (7th Cir. 1996). The Complaint

alleges that multiple prisoners in the protective custody unit complained to Lashbrook and John

Doe about Johnson’s conduct and none of the complaints were addressed, and Johnson had a

history of harassing prisoners, demonstrating that Defendants’ treated other prisoners in the

protective unit in a similar manner as Brickhouse. Because Brickhouse cannot rely on bald or

conclusory assertions to establish a claim for discrimination, Count 5 is dismissed. See Ashcroft v.

Iqbal, 556 U.S. 662, 681 (2009) (citing Twombly, 550 U.S. at 554-55).

IDENTIFICATION OF THE UNKNOWN DEFENDANT

Brickhouse will be allowed to proceed with Count 2 against the John Doe Defendant, but

this individual must be identified with particularity before service of the Complaint can be made.

Brickhouse will have the opportunity to engage in limited discovery to ascertain the unknown

defendant’s identity. Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 832 (7th Cir. 2009).

In that vein, Warden Anthony Wills shall be added as a defendant in this action, in his official

capacity, for the purpose of responding to discovery aimed at identifying the unknown defendant.

Guidelines for discovery will be set at a later date. Once the name of the individual is discovered,

Brickhouse must file a motion to substitute the newly identified defendant in place of the generic

designation in the case caption and throughout the Complaint.

The Complaint includes a request for injunctive relief, however, Brickhouse is no longer

incarcerated at Menard, where the events giving rise to this action occurred. Therefore, any request

for injunctive relief is now moot and is dismissed. Lehn v. Holmes, 364 F.3d 862, 871 (7th Cir.

2004) (“[W]hen a prisoner who seeks injunctive relief for a condition specific to a particular prison

is transferred out of that prison, the need for relief, and hence the prisoner's claim, become moot.”).

DISPOSITION

For the reasons provided above, the Complaint survives preliminary review pursuant to 28

U.S.C. §1915A. Counts 1, 3, and 4 shall proceed against Johnson, and Count 2 shall proceeding

against Lashbrook and John Doe. Count 5 is DISMISSED without prejudice. The claims for

injunctive relief are DISMISSED without prejudice. Defendant Wilson is also DISMISSED

without prejudice, and the Clerk of Court is DIRECTED to terminate him as a defendant. The

Clerk is further DIRECTED to ADD Warden Anthony Wills as a defendant, in his official

capacity only, for the purpose of responding to discovery aimed at identifying the unknown

defendant.

The Clerk of Court shall prepare for Johnson, Lashbrook, Wills (official capacity), and

John Doe (once identified): (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 Brickhouse. 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 pay the full costs of formal service, to the extent authorized by the Federal

Rules of Civil Procedure.

Brickhouse, the employer shall furnish the Clerk with that defendant’s current work address, or, if

not known, his or her 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, with the exception of Warden Wills, 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. Warden Wills need only appear in

this matter and is not obligated to file an answer.

If judgment is rendered against Brickhouse, and the judgment includes the payment of costs

under Section 1915, Brickhouse will be required to pay the full amount of the costs, whether or

not an in forma pauperis application is granted. 28 U.S.C. § 1915(f)(2)(A).

Finally, Brickhouse is ADVISED that she is under a continuing obligation to keep the

Clerk of Court and each opposing party informed of any change in her address; the Court will not

independently investigate her 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: December 2, 2020

s/Stephen P. McGlynn

STEPHEN P. MCGLYNN

United States District Judge

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 the 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 of the defendants have filed Answers, the Court will enter a Scheduling

Order containing important information on deadlines, discovery, and procedures. Brickhouse 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. Brickhouse need not submit

any evidence to the Court at this time, unless otherwise directed by the Court.