# Owens v. Neese

> District Court, S.D. Illinois · January 21, 2022

URL: https://www.frixlaw.com/law-library/cases/10154528

## Case

- **Court:** District Court, S.D. Illinois
- **Decided:** January 21, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10154528

## How later opinions describe it (automated extraction)

- finding the phrase “one or more of the Defendants” did not adequately connect specific defendants to illegal acts, and thus failed to adequately plead personal involvement

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

NICHOLAS OWENS, #K58364, )
)
Plaintiff, )
vs. ) Case No. 3:20-cv-00679-DWD
)
MICHELLE NEESE, )
V. SHAH, )
RACHEL DODD, )
LT. PEACH, )
GREGORY SORENSON, )
PHIL MARTIN, )
JUSTIN TUEL, )
ASSISTANT WARDEN BROOKHART, )
SGT. STEVENS, )
WEXFORD HEALTH SOURCES INC., )
and JOHN DOES 1-10, )
)
Defendants. )

MEMORANDUM AND ORDER

DUGAN, District Judge:
Plaintiff Nicholas Owens, 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 Robinson Correctional Center. This case is now before the Court
for preliminary review of the Complaint under 28 U.S.C. § 1915A. 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 the Complaint (Doc. 1): Plaintiff began
filing grievances on February 17, 2019 regarding issues with medical care and, shortly
thereafter, he was subject to acts of retaliation including destruction of his property,
termination from his job, and numerous instances of harassment.

The Orange Crush Tactical Unit (John Does 1-10) conducted a shakedown of
Plaintiff’s cell on April 29, 2019. During the shakedown, liquid was poured in his
correspondence box ruining various legal materials, personal writings, greeting cards,
notebooks, and publications. They ransacked his personal property, broke bars of soap,
smashed food items, and broke his dental partial plate. Other similarly situated inmates
were not treated in this manner. He was singled out in an act of retaliation.

Thereafter, Plaintiff continued to file grievances and experienced additional acts
of retaliation including not receiving adequate health care or a correct diagnosis for his
serious medical conditions. Dr. Shah maintained a course of treatment which he knew to
be ineffective.
Defendants were deliberately indifferent to Plaintiff’s serious medical conditions

in violation of the Eighth Amendment and retaliated against him for filing grievances in
violation of the First Amendment. Defendants maintained a policy, practice, or procedure
which denied, limited, or delayed a constitutionally adequate level of health care in
violation of the Eighth Amendment.
Preliminary Dismissals

Under Federal Rule of Civil Procedure 8(a)(1), a Complaint “must contain a short
and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.
Civ. P. 8(a). Merely naming a party in the caption of a Complaint is not enough to state a
claim against that individual. Collins v. Kibort, 143 F.3d 331, 334 (7th Cir. 1998). A plaintiff
is required to associate specific defendants with specific claims, so that defendants are
put on notice of the claims brought against them and can properly answer the complaint.

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); Fed. R. Civ. P. 8(a)(2). Further, to
properly plead a § 1983 claim, a plaintiff must allege that each defendant was personally
involved in the deprivation of a constitutional right. Matz v. Klotka, 769 F.3d 517, 528 (7th
Cir. 2014) (“[I]ndividual liability under § 1983 requires personal involvement in the
alleged constitutional deprivation”).
The Complaint does not mention Michelle Neese, Rachel Dodd, Lt. Peach, Gregory

Sorenson, Phil Martin, Justin Tuel, Assistant Warden Brookhart, Sgt. Stevens, or Wexford
Health Sources, Inc. in the “statement of facts” or “claims.” (Doc. 1, pp. 6-7). Although
there are some vague, conclusory allegations against the “Defendants” collectively, those
allegations are insufficient to state a claim against any specific defendant. Brooks v. Ross,
578 F.3d 574, 580 (7th Cir. 2009) (finding the phrase “one or more of the Defendants” did

not adequately connect specific defendants to illegal acts, and thus failed to adequately
plead personal involvement). Further, the allegations are similar to allegations that the
Seventh Circuit found factually insufficient under Ashcroft v. Iqbal, 556 U.S. 662 (2009) in
Brooks v. Ross. Brooks, 578 F.3d at 582. In Brooks, the plaintiff alleged:
Plaintiff is informed, believes and alleges that the Defendants while acting in
concert with other State of Illinois officials and employees of the Attorney
General's Office, Department of Corrections and Prisoner Review Board did
knowingly, intentionally and maliciously prosecute Plaintiff and Ronald
Matrisciano in retaliation for Plaintiff and the said Ronald Matrisciano exercising
rights and privileges under the Constitutions and laws of the United States and
State of Illinois.

Here, Plaintiff alleges:
The Defendants[] have remained deliberately indifferent to my serious medical
conditions and have violated my rights[] and the 8th Amendment to the United
States Constitution. The Defendants have retaliated against me for the filing of
administrative grievances and have violated my rights[] under the 1st
Amendment of the United States Constitution.
…
The [D]efendants have maintained a policy, practice, or procedure which denied,
limited[,] or otherwise held-up the provision of a constitutionally adequate level
of health care and have violated my rights under the 8th Amendment of the United
States Constitution.

Because Plaintiff has failed to ground his legal conclusions in a sufficiently
plausible factual basis, and failed to adequately connect specific defendants to illegal acts,
the claims against Michelle Neese, Rachel Dodd, Lt. Peach, Gregory Sorenson, Phil
Martin, Justin Tuel, Assistant Warden Brookhart, Sgt. Stevens, or Wexford Health
Sources, Inc. are dismissed without prejudice for failure to state a claim upon which relief
can be granted.
Additionally, the allegations that Plaintiff suffered retaliation in the form of
termination from his job and numerous instances of harassment are dismissed without
prejudice for failure to state a claim. The allegations are vague, conclusory, and not
associated with any defendant.
Because Plaintiff is currently incarcerated at Shawnee Correctional Center (Doc.
19), his request for injunctive relief related to the events at Robinson, is dismissed as 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, and hence the prisoner’s claim, become moot.”).
Discussion
Following the preliminary dismissals, the Court designates the following claims
in this pro se action based on the allegations in the Complaint:

Count 1: First Amendment claim against John Does 1-10 (Orange Crush
Tactical Unit) for destroying Plaintiff’s property on April 29,
2019 in retaliation for Plaintiff filing grievances.

Count 2: Fourteenth Amendment deprivation of property claim
against John Does 1-10 (Orange Crush Tactical Unit) for
depriving Plaintiff of his property.

Count 3: Eighth Amendment deliberate indifference to serious medical
needs claim against Dr. Shah for maintaining a course of
treatment which he knew to be ineffective.

Count 4: First Amendment retaliation claim against Dr. Shah.

Any claim that is mentioned in the Complaint but not addressed in this Order is
dismissed without prejudice as inadequately pled under the Twombly pleading standard.
See Twombly, 550 U.S. at 570 (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.”).
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). rate indifference. Berry
v. Peterman, 604 F.3d 435, 441 (7th Cir. 2010). “A complaint states a claim for retaliation
when it sets forth ‘a chronology of events from which retaliation may plausibly be

inferred.’” Zimmerman v. Tribble, 226 F.3d 568, 573 (7th Cir. 2000). At this stage, the
allegations in the Complaint are sufficient to proceed on the retaliation claim in Count 1
against John Does 1-10 (Orange Crush Tactical Unit).
Count 2
To state a property loss claim under the Fourteenth Amendment, Plaintiff must
establish a deprivation of liberty or property without due process of law. If the state

provides an adequate remedy for the deprivation of property, Plaintiff has no civil rights
claim. Hudson v. Palmer, 468 U.S. 517, 530–36 (1984) (availability of damages remedy in
state claims court is an adequate, post-deprivation remedy). In that vein, the Seventh
Circuit has found that Illinois provides an adequate post-deprivation remedy in an action
for damages in the Illinois Court of Claims. Murdock v. Washington, 193 F.3d 510, 513 (7th

Cir. 1999); Stewart v. McGinnis, 5 F.3d 1031, 1036 (7th Cir. 1993); 705 Ill. Comp. Stat. 505/8
(1995). For these reasons, Count 2 will be dismissed with prejudice.
Count 3
Prison officials and medical staff violate the Eighth Amendment’s prohibition on
cruel and unusual punishment when they act with deliberate indifference to a prisoner’s

serious medical (or dental) needs. Rasho v. Elyea, 856 F.3d 469, 475 (7th Cir. 2017). To state
a claim, a prisoner must allege facts suggesting that (1) he suffered from an objectively
serious medical condition, and (2) the defendant acted with deliberate indifference to his
medical needs. Id. Additionally, a physician’s choice of the “easier and less efficacious
treatment” for an objectively serious medical condition can constitute deliberate
indifference.

The only specific factual allegations for this claim are various references to
“serious medical conditions” and that Dr. Shah is that he “maintained a course of
treatment which he knew to be ineffective.” Plaintiff does not describe the medical
condition(s) at issue or the alleged ineffective course of treatment, which are basic
pleading requirements for the claim he seeks to bring. All other allegations regarding
deliberate indifference are made against “Defendants” collectively and are similarly

vague and conclusory. While a pro se Plaintiff’s pleading is construed liberally, the Court
cannot guess or speculate so as to fill in significant holes in the pleading. For these
reasons, Count 3 is dismissed without prejudice for failure to state a claim for relief.
Count 4
The retaliation claim in Count 4 against Dr. Shah suffers from the same pleading

deficiencies as Count 3. As such, it is also dismissed without prejudice for failure to state
a claim for relief.
Identification of Doe Defendants
The Warden of Robinson Correctional Center, in an official capacity, will be added
to the docket for purposes of responding to discovery aimed at identifying the Doe

Defendants. See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 832 (7th Cir. 2009);
Fed. R. Civ. P. 21. Guidelines for discovery will be set by the undersigned judge. Once
the names of the Doe Defendants are discovered, Plaintiff shall file a motion to substitute
the newly identified defendants in place of the generic Doe designations.
Disposition
The Complaint survives review under 28 U.S.C. § 1915A in part and is dismissed
in part as follows: Count 1 will proceed against John Does 1-10 (Orange Crush Tactical

Unit). Count 2 and the injunctive relief claim are DISMISSED with prejudice. Counts 3
and 4 are DISMISSED without prejudice. Michelle Neese, Rachel Dodd, Lt. Peach,
Gregory Sorenson, Phil Martin, Justin Tuel, Assistant Warden Brookhart, Sgt. Stevens,
Wexford Health Sources, Inc. and V. Shah are DISMISSED without prejudice and the
Clerk of Court is DIRECTED to TERMINATE them as defendants. The Clerk is

DIRECTED to ADD the Warden of Robinson Correctional Center, official capacity only,
to the docket for purposes of responding to discovery aimed at identifying the Doe
Defendants.
The Clerk of Court shall prepare for the Warden of Robinson Correctional Center
(official capacity only) and once identified, John Does 1-10: (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 Defendant’s place of employment as identified by
Plaintiff. 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 the Defendant, and the Court will require
the Defendant to pay the full costs of formal service, to the extent authorized by the
Federal Rules of Civil Procedure.
If a Defendant cannot be found at the work address provided by Plaintiff, the
employer shall furnish the Clerk with the Defendant’s current work address, or, if not
known, the Defendant’s 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 and shall not be maintained in the court
file or disclosed by the Clerk.
Service shall not be made on the Doe Defendants until such time as Plaintiff has
identified those individuals by name in a properly filed motion for substitution. Plaintiff
is ADVISED that it is his responsibility to provide the Court with the name and service

address for those individuals.
Defendants 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. Because the Warden of Robinson Correctional Center

is in the case solely for discovery purposes, the Warden need not respond to the
Complaint. The Warden only needs to enter an appearance and will receive further
instruction on discovery at a later date.
Plaintiff is ADVISED that if judgment is rendered against him and the judgment
includes the payment of costs under 28 U.S.C. §1915. 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: January 14, 2022 Lb

David W. Dugan
United States District Judge

10

Notice to Plaintiff
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. Plaintiff 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. Plaintiff need not
submit any evidence to the Court at his time, unless otherwise directed by the Court.
The Court wishes to remind the Plaintiff that litigation is often viewed a series of hurdles
that the Plaintiff must clear to get to another hurdle. Initial screening is such a hurdle, but
it is a very low one for the Plaintiff to clear. As noted above, surviving initial screening
only requires the bare statement of a claim that, if proven, could entitle Plaintiff to some
relief. At trial, they will need to prove by a preponderance of evidence that the facts
alleged actually occurred and that those facts satisfy the legal requirements for recovery.
Trial is the highest and most difficult of hurdles for any Plaintiff to clear.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10154528. Public record. Not legal advice.