# Price v. Brookhart

> District Court, S.D. Illinois · November 30, 2021

URL: https://www.frixlaw.com/law-library/cases/10154404

## Case

- **Court:** District Court, S.D. Illinois
- **Decided:** November 30, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10154404. Public record. Not legal advice.