Price v. Brookhart

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

LEE PRICE, )

)

Plaintiff, )

)

vs. ) Case No. 19-cv-1368-DWD

)

)

DEANNA M. BROOKHART and )

GLADYSE TAYLOR, )

)

Defendants. )

)

MEMORANDUM AND ORDER

DUGAN, District Judge:

This case is before the Court for screening of Plaintiff Lee Price’s Third Amended

Complaint (Doc. 20). Price is currently incarcerated at Danville Correctional Center. He

originally filed a civil rights action in Price v. Brookhart, et al., Case No. 19-cv-689-NJR. The

Court severed his claims and the severed claims were dismissed for failure to state a claim

(Docs. 1 and 11). Price subsequently filed a Second Amended Complaint which narrowed

and altered his claims, but that Complaint was also dismissed for failure to state a claim

(Docs. 16 and 18). He has now filed a Third Amended Complaint which seeks to clarify

his claims in his Second Amended Complaint and adds an additional Defendant. He

again seeks to proceed on the following claim:

Count 1: Eighth Amendment claim against Deanna Brookhart and

Gladyse Taylor for failure to protect Plaintiff from sexual

assault by another inmate.1

This case is now before the Court for preliminary review of the Third Amended

Complaint pursuant to 28 U.S.C. § 1915A. Under Section 1915A, the Court is required to

screen prisoner complaints to filter out non-meritorious claims. See 28 U.S.C. § 1915A(a).

Any portion of a complaint that is legally frivolous, malicious, fails to state a claim upon

which relief may be granted, or asks for money damages from a defendant who by law

is immune from such relief must be dismissed. 28 U.S.C. § 1915A(b).

The Third Amended Complaint

Price makes the same allegations in his Third Amended Complaint as he did in his

Second Amended Complaint (Doc. 16).2 Brookhart, after becoming Warden of Lawrence,

issued an order that all inmates who were housed singly were to be given a cellmate,

regardless of whether they were transgender, homosexual, disabled, or considered

vulnerable (Doc. 20, p. 6). If an inmate refused, they were to be placed in a crisis cell or

issued a disciplinary ticket (Id.). Price is over 60, straight, and suffers from several medical

conditions (Id. at pp. 10-11).

1 Additionally, Price indicates that he wishes to bring a Fourteenth Amendment Equal Protection

claim against Brookhart, but other than indicating he was “denied equal protection” he provides

no factual allegations suggesting such claim. He does not allege that he was a member of a

protected class nor does he allege that he was singled out and treated differently from others

similarly situated. See Brunson v. Murray, 843 F.3d 698, 705 (7th Cir. 2016); Forgue v. City of Chicago,

873 F.3d 962, 968 (7th Cir. 2017); Brown v. Budz, 398 F.3d 904, 916 (7th Cir. 2005).

2 The Court summarized the allegations in the Second Amended Complaint in its Order

dismissing that Complaint (Doc. 18).

On March 14, 2019, he was moved to a new cell pursuant to “Warden Orders” (Id.

at p. 6). Price’s new cellmate was homosexual although Price did not know that at the

time (Id.). The new cellmate had a history of sexual assault. Many staff and inmates that

Price talked to knew of his cellmate’s history. On March 24, 2019, Price was sexually

assaulted by his cellmate (Id.).

Price alleges that Brookhart is responsible in both her individual and official

capacity because she is the supervisor who appoints employees to implement department

policies (Id. at p. 9). According to Price, her policy is also in violation of a settlement

agreement in Rasho v. Walker, Case No. 07-cv-1298-MMM (C.D. Ill) (“Rasho”) (pertaining

to mental health treatment for inmates in IDOC custody who are “seriously mentally ill”).

Price indicates that the difference between he and his cellmate, including physical ability,

backgrounds, sexual preferences, racial, and mental differences should have prohibited

Price’s placement with the cellmate who sexually assaulted him (Id. at pp. 9-10). Both staff

and inmates that Price spoke with knew of his cellmate’s sexual preference and past

sexual conduct (Id. at p. 10). Both Brookhart and Taylor denied Price’s grievances and he

believes that Brookhart sought to sidestep the issues in her grievance response (Id.).

Discussion

The Court first notes that Gladyse Taylor is not listed as a defendant in the caption

of Price’s Third Amended Complaint (Doc. 20). The Court will not treat parties not in the

case caption as defendants. See Myles v. United States, 416 F.3d 551, 551 (7th Cir. 2005).

Thus, the Court does not consider Taylor to be a proper defendant at this time.

As previously stated by the Court in reviewing Price’s Second Amended

Complaint, prison officials “have a duty to protect inmates from violent assaults by other

inmates. They incur liability for the breach of that duty when they were aware of a

substantial risk of serious injury to [an inmate] but nevertheless failed to take appropriate

steps to protect him from a known danger.” Rice ex rel. Rice v. Corr. Med. Servs., 675 F.3d

650, 669 (7th Cir. 2012) (quotations omitted). Here, to invoke individual liability, Price

must allege Brookhart promulgated an unconstitutional policy with notice that it would

pose “a substantial risk of serious harm” to Price. Butera v. Cottey, 285 F.3d 601, 605 (7th

Cir. 2002). A policy of random cellmate assignments is not in and of itself deliberate

indifference in violation of the Constitution. See Ramos v. Hamblin, 840 F.3d 442 (7th Cir.

2016). But, as the Seventh Circuit has explained, if an official places “a prisoner in a cell

that has a cobra, but they do not know that there is a cobra there (or even that there is a

high probability that there is a cobra there), they are not guilty of deliberate indifference

even if they should have known about the risk, that is, even if they were negligent – even

grossly negligent or even reckless in the tort sense – in failing to know.” Billman v. Indiana

Dep't of Corr., 56 F.3d 785, 788 (7th Cir. 1995).

Price again fails to state a claim. He again fails to allege that Brookhart was

personally involved in the selection of his cellmate. Nor does he plead any facts to suggest

that Brookhart’s alleged order pertained to known sexual predators or that she had notice

the order posed a substantial risk of sexual assault for Price or any inmate. Although he

alleges that other inmates and staff that he talked to had knowledge of his attacker’s past

and preferences, he does not allege that Brookhart was aware. He only alleges that she is

responsible because she supervised employees who implemented the policy and were

aware of his past. But Brookhart cannot be held liable on this basis because respondeat

superior, or supervisory, liability is not recognized under Section 1983. Sanville v.

McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001). Nor can she be held liable for simply

denying Price’s grievances. Owens v. Hinsley, 635 F.3d 950, 953 (7th Cir. 2011) (“[T]he

alleged mishandling of [a prisoner’s] grievance by persons who otherwise did not cause

or participate in the underlying conduct states no claim.”); George v. Smith, 507 F.3d 605,

609-10 (7th Cir. 2007). Finally, Price argues that Brookhart’s policy violated the terms of

the settlement in Rasho. But to the extent that Price raises issues with the enforcement of

that settlement, such claims should be brought in the Central District of Illinois, where

that case was litigated. See Rasho v. Walker, Case No. 07-1298, 2018 WL 2392847, *6 (C.D.

Ill., May 25, 2018) (stating that the “Settlement Agreement allows for the Plaintiffs to seek

relief from this Court if there is a dispute as to whether or not the Defendants are in

substantial compliance.”). Thus, Price fails to state a claim against Brookhart in her

individual capacity in Count 1.

As to the official capacity claim against Brookhart, the Court previously found that

Price adequately alleged a claim but because he only sought monetary damages, his claim

was barred by the Eleventh Amendment (Doc. 18, p. 4). Price now seeks injunctive relief

in the form of a policy change that would allow one-man cell assignments for inmates

who are over a certain age or particularly vulnerable. In fact, it appears he now only seeks

injunctive relief (Doc. 20, p. 7). But Price is no longer housed at Lawrence Correctional

Center nor has he alleged that he is likely to be transferred back to Lawrence and face the

possibility of being double-celled. Thus, his official capacity claim for injunctive relief is

now moot. 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...become[s] moot.”). Accordingly, his official capacity

claim is dismissed.

This is Price’s third attempt at submitting a complaint that could state a claim. He

failed to do so. The Court finds that any additional amendment would be futile.

Accordingly, the Third Amended Complaint, along with this action, will be DISMISSED

with prejudice. See Agnew v. NCAA, 683 F.3d 328, 347 (7th Cir. 2012); McCree v. Grissom,

657 F.3d 623, 624 (7th Cir. 2011); Garcia v. City of Chicago, Ill., 24 F.3d 966, 970 (7th Cir.

1994).

Disposition

Accordingly, Price’s Third Amended Complaint (Doc. 20) is DISMISSED with

prejudice for failure to state a claim upon which relief may be granted. This shall count

as a “strike” for purposes of 28 U.S.C. 1915(g).

If Price wishes to appeal this Order, he must file a notice of appeal with this Court

within thirty days of the entry of judgment. Fed. R. App. P. 4(a)(1)(A). If Price does choose

to appeal, he will be liable for the $505.00 appellate filing fee irrespective of the outcome

of the appeal. See 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); Sloan v. Lesza, 181 F.3d 857, 858-59 (7th Cir. 1999); Lucien, 133

F.3d at 467. He must list each of the issues he intends to appeal in the notice of appeal

and his motion for leave to appeal in forma pauperis. See Fed. R. App. P. 24(a)(1)(C). 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 judgment, and this 28-day deadline

cannot be extended.

The Clerk of Court is DIRECTED to close this case and enter judgment

accordingly.

IT IS SO ORDERED.

DATED: November 30, 2021 Dy

dn

DAVID W. DUGAN

U.S. District Judge