Brand v. Oglesby

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

CROSETTI BRAND, #M02369 )

)

Plaintiff, )

vs. ) Case No. 3:21-cv-01072-SMY

)

OGLESBY, )

DANIEL MONTI, and )

ROB JEFFREYS, )

)

Defendants. )

MEMORANDUM AND ORDER

YANDLE, District Judge:

Plaintiff Crosetti Brand, an inmate of the Illinois Department of Corrections, filed the

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

Shawnee Correctional Center. Plaintiff’s Complaint was dismissed for failure to state a claim for

relief and he was granted leave to file a First Amended Complaint. This case is now before the

Court for preliminary review of the First Amended Complaint under 28 U.S.C. § 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).

The First Amended Complaint

Plaintiff makes the following allegations in the First Amended Complaint (Doc. 15):

Plaintiff was incarcerated at Shawnee in the receiving unit on April 23, 2021. Correctional Officer

Oglesby called for early lock up from dayroom on that date. Plaintiff requested a grievance form

to complain about the early lock up. In retaliation, C/O Oglesby became aggressive, ordered

Plaintiff to lock up, and entered Plaintiff’s cell in a threatening manner. C/O Oglesby called

Plaintiff a “rat” and threatened Plaintiff with pepper spray if he made any movement. Plaintiff did

not pose a threat of harm to C/O Oglesby or any other individual. Plaintiff suffered psychological

harm because he feared for his life and safety during the encounter.

Plaintiff filed an emergency grievance, which was granted expedited review by Warden

Monti. The grievance was ultimately denied and Plaintiff appealed to the Administrative Review

Board (ARB). The ARB and IDOC Director Rob Jeffreys denied the appeal. Internal affairs

officers conducted an investigation and interviewed Plaintiff. Warden Monti reviewed the

outcome of the investigation.

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

following claims in this pro se action:

Count 1: First Amendment retaliation claim against Oglesby for behaving in

an aggressive manner toward Plaintiff after he requested a grievance

form on April 23, 2021.

Count 2: Eighth Amendment cruel and unusual punishment claim against

Oglesby for behaving in an aggressive manner toward Plaintiff and

threatening the use of pepper spray on April 23, 2021.

Count 3: Fourteen Amendment claim against Oglesby for cutting short

Plaintiff’s dayroom time on April 23, 2021.

Count 4: Fourteenth Amendment claim against Monti and Jeffreys for failure

to investigate Plaintiff’s claims and/or denying his grievances

related to the April 23, 2021 incident with Oglesby.

Count 5: State law assault claim against Oglesby for behaving in an

aggressive manner toward Plaintiff and threatening the use of

pepper spray on April 23, 2021.

Count 6: State law indemnification claim.

Any claim that is mentioned in the First Amended Complaint but not addressed in this

Order is dismissed without prejudice as inadequately pled under the Twombly pleading standard.

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.”).

Discussion

Count 1

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

Amendment rights, or otherwise complaining about their conditions of confinement. See, e.g.,

Gomez v. Randle, 680 F.3d 859, 866 (7th Cir. 2012). To state a retaliation claim, a plaintiff must

allege that “(1) he engaged in activity protected by the First Amendment; (2) he suffered a

deprivation likely to deter such activity; and (3) the First Amendment activity was at least a

motivating factor in the decision to impose the deprivation.” Hawkins v. Mitchell, 756 F.3d 983,

996 (7th Cir. 2014).

Plaintiff’s allegations do not state a colorable retaliation claim. He does not allege that he

suffered a deprivation likely to deter activity protected by the First Amendment. Therefore, Count

1 will be dismissed for failure to state a claim.

Count 2

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

§ 1983. See, 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 and unusual punishment. Therefore, Count 2

will be dismissed for failure to state a claim.

Count 3

Plaintiff alleges Oglesby violated his due process rights under the Fourteenth Amendment

by interfering with his dayroom time. For the due process clause to apply, there must be a

protected liberty interest that is being infringed upon. Meachum v. Fano, 427 U.S. 215, 223–24

(1976). However, not every action that carries with it negative consequences creates a liberty

interest for inmates. Moody v. Daggett, 429 U.S. 78, 86–88 (1976).

There is no bright-line constitutional rule requiring a set amount of time for inmates to have

dayroom access, contrary to Plaintiff's belief. That said, cutting short dayroom time on one

occasion does not rise to the level of a protected liberty interest. See Thomas v. Ramos, 130 F.3d

754, 762 n.8 (7th Cir. 1997); Beaman v. Pollard, 711 F. App'x 794 (7th Cir. 2018). Therefore,

Count 3 will be dismissed for failure to state a claim.

Count 4

Plaintiff seeks to bring a claim against Warden Monti and IDOC Director Jeffreys for

failure to investigate his claims and/or denying his grievances. Prison grievance procedures are

not mandated by the First Amendment and do not create interests protected by the due process

clause. Owens v. Hinsley, 635 F.3d 950, 953 (7th Cir. 2011). Thus, prison officials incur no

liability under § 1983 if they fail to investigate a prisoner’s complaints or grievances. Geiger v.

Jowers, 404 F.3d 371, 374 (5th Cir. 2005). Additionally, “[p]rison officials who simply processed

or reviewed inmate grievances lack personal involvement in the conduct forming the basis of the

grievance.” Owens v. Evans, 878 F.3d 559, 563 (7th Cir. 2017); see also George v. Smith, 507

F.3d 605, 609 (7th Cir. 2007) (“[r]uling against a prisoner on an administrative complaint does not

cause or contribute to the violation.”).

For these reasons, Count 4 fails to state a claim for relief and will be dismissed.

Counts 5 and 6

Plaintiff seeks to bring a state law claims of assault against Oglesby and a claim for

indemnification. When a district court has original jurisdiction over a civil action such as

a § 1983 claim, it also has supplemental jurisdiction over related state law claims pursuant to 28

U.S.C. § 1367(a), so long as the state claims “derive from a common nucleus of operative fact”

with the original federal claims. Wisconsin v. Ho-Chunk Nation, 512 F.3d 921, 936 (7th Cir.

2008). Here, however, there are no allegations stating a colorable constitutional claim under §

1983. Consequently, the Court does not have original jurisdiction. Counts 5 and 6 will also be

dismissed.

Request for Injunctive Relief

Plaintiff filed a Motion for Temporary Restraining Order and Preliminary Injunction (Doc.

16) seeking an order that surveillance video that may have captured the events set forth in his First

Amended Complaint be preserved. Because Plaintiff’s First Amended Complaint does not survive

preliminary review under 28 U.S.C. § 1915A, this discovery related request will be denied.

Disposition

The Motion for Temporary Restraining Order and Preliminary Injunction (Doc. 16) is

DENIED.

The First Amended Complaint (Doc. 15) is DISMISSED for failure to state a claim for

relief. Because the problems with the First Amended Complaint cannot be cured by permitting

Plaintiff to amend, the dismissal is with prejudice. See Bogie v. Rosenberg, 705 F.3d 603, 608

(7th Cir. 2013); Garcia v. City of Chicago, 24 F.3d 966, 970 (7th Cir. 1994). The dismissal counts

as a “strike” under 28 U.S.C. § 1915(g). The Clerk of the Court is DIRECTED to enter final

judgment and to close this case.

If Plaintiff wishes to appeal this dismissal, his notice of appeal must be filed with this Court

within thirty days of the entry of judgment. Fed. R. App. P. 4(a)(1)(A). A proper and timely

motion filed pursuant to Federal Rule of Civil Procedure 59(e) may toll the 30-day appeal deadline.

Fed. R. App. P. 4(a)(4). A Rule 59(e) motion must be filed no more than twenty-eight (28) days

after the entry of the judgment, and this 28-day deadline cannot be extended.

Plaintiff is liable for the $505.00 appellate filing fee irrespective of the outcome of the

appeal. Fed. R. App. P. 3(e); 28 U.S.C. § 1915(e)(2); Ammons v. Gerlinger, 547 F.3d 724, 725-

26 (7th Cir. 2008). If a motion for leave to appeal in forma pauperis is filed, it must set forth the

issues Plaintiff plans to present on appeal. See Fed. R. App. P. 24(a)(1)(C). Further, if the appeal

is found to be nonmeritorious, Plaintiff may incur another “strike.”

IT IS SO ORDERED.

DATED: September 23, 2021

s/ Staci M. Yandle_____

STACI M. YANDLE

United States District Judge