Walker v. Butler

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

JAMES E. WALKER, )

R02343, )

)

Plaintiff, )

)

vs. ) Case No. 21-cv-1174-DWD

)

KIM BUTLER. )

)

Defendant. )

MEMORANDUM AND ORDER

DUGAN, District Judge:

Plaintiff James E. Walker, an inmate of the Illinois Department of Corrections

(IDOC) currently detained at Sheridan Correctional Center (Sheridan), brings this civil

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

rights at Menard Correctional Center (Menard). (Doc. 2). The claims in this case were

severed from Walker v. Butler, et al., 19-cv-445-SPM (S.D. Ill. 2019). In this severed case,

Plaintiff contends that Butler violated his rights by denying him soap, and that the denial

constituted retaliation.

Plaintiff’s Complaint (Doc. 2) is now before the Court for preliminary review

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)-(b).

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). 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 Complaint

The claims that were severed into this case are:

Claim 13: First Amendment claim of retaliation against Butler for refusing to

provide Walker adequate soap in retaliation for Walker

complaining about his lack of soap in front of a visitor from the

John Howard Association in 2015;

Claim 14: Eighth Amendment claim for cruel and unusual punishment

against Butler for denying Plaintiff soap for several weeks in 2015;

Walker v. Butler, et al., 19-cv-445-SPM (Doc. 102).

Plaintiff’s factual allegations pertaining to these claims are contained in a single

paragraph. Plaintiff alleges:

In November of 2015, Plaintiff grievance his missing grievances personally

placed in the grievance box on September 27, 2015, concerning the Warden

failure to supply adequate soap that would last a month. Which Plaintiff

had spoke with Defendant Butler face to face while she walked with visitor

from John Howard Association through three gallery. Plaintiff informed

Defendant Butler how he has continue to go without soap for weeks. Butler

told Plaintiff that it would take some time but she would speak with

cellhouse officials because it was soap. Plaintiff ask the warden what is he

to do in between the times go without soap but that went ignored. A few

months later Plaintiff saw cellhouse officers given inmate worker the soap

that he has complain about in numerous grievances. Upon information and

belief, Defendant Wood would not respond to Plaintiff grievance out of

retaliation because it was against staff. And Defendant Butler did not

supply Plaintiff adequate soap because he confronted her in front of John

Howard and for Plaintiff repeated grievances in apparent retaliation.

Plaintiff grievance for the second time by John Doe 6 been taken out of

retaliation because he is responsible for taking the grievances from the box

and transferring the grievances to the counselor office, thus, denying

Plaintiff proper access to the grievance procedure.

(Doc. 2 at 24). In support of the complaint, Plaintiff included nearly 300-pages of exhibits.

Within the exhibits, there are grievances dated November 8, 2015, and November 22,

2015, concerning the soap issue. (Doc. 2-2 at 47-50). There is also an ARB response dated

December 11, 2015, returning an appeal of these grievances because it did not include

copies of the institutional responses from the counselor, grievance officer, or chief

administrative officer. (Doc. 2-2 at 46). The grievances shed light on Plaintiff’s

complaints about soap and Butler’s role in the issue.

In the November 8 grievance, Plaintiff alleges that he initially grieved the soap

issue on September 21, 2015, alleging that during some dates in September he lacked

adequate soap. (Doc. 2-2 49). On October 13, 2015, Plaintiff allegedly spoke with the

Warden about the issue when she walked through the gallery, and she apparently told

him the “big green state soap” would be issued to the indigent. Plaintiff alleges that on

October 20, 2015, he again received “the inadequate two small hotel size soap.” On

October 23, 2015, he again spoke with the Warden while she was touring the gallery with

someone from the John Howard Association. He told her he still had inadequate soap,

and she told him “its going to take some time and she would speak with the cellhouse

major[.]” Plaintiff asked her what he should do in the interim without soap, to no avail.

He alleged in his grievance that the lack of soap was a violation of the Eighth

Amendment.

In the November 22 grievance, Plaintiff claimed that hygiene bags were being

delivered later and later each month, and that the inadequate soap was an even greater

problem because for some period of time laundry machines were out of service, so

inmates had to wash their own clothes. (Doc. 2-2 at 47-48). As an indigent, he alleges he

and many others were unable to buy extra soap from commissary to wash their clothes.

He claimed he should not be forced to go a week without clean linens or clothes, and

that the unsanitary conditions violate the Eighth Amendment.

Analysis

The claims severed into the present lawsuit are barred by the applicable statute

of limitations, and Plaintiff has failed to plead a sufficient claim.

A. Statute of Limitations

The applicable statute of limitations period for actions brought pursuant to 42

U.S.C. § 1983 is a state’s period for personal injury torts. See Kalimara v. Ill. Dept. of

Corrections, 879 F.2d 276, 277 (7th Cir. 1989). In Illinois, where the events in Plaintiff’s

complaint occurred, that period is two years. See Woods v. Illinois Dept. of Children and

Family Svcs., 710 F.3d 762, 765-766 (7th Cir. 2013); 735 ILCS § 5/13-202. Illinois recognizes

equitable tolling of the two-year period for an inmate to pursue administrative

exhaustion of a claim at the institutional level. See Terry v. Spencer, 888 F.3d 890, 894 (7th

Cir. 2015). A court may sua sponte dismiss a case at § 1915A review if the applicability

of the statute of limitations is “so plain from the language of the complaint…that it

renders the suit frivolous.” Id. at 894; Dickens v. Illinois, 753 Fed. App’x 390 (7th Cir. 2018)

(a court may dismiss a complaint upon screening if it is clearly barred by the statute of

limitations).

This case is procedurally odd. Originally, Plaintiff filed a lawsuit in this district

on July 16, 2015. Walker v. Unknown Party, et al., 15-cv-786-MAB (S.D. Ill.). Plaintiff was

twice ordered to file an amended complaint because the original complaint violated

Federal Rule of Civil Procedure 20, which guards against the joinder of numerous

unrelated claims and parties in a single lawsuit. (Docs. 7, 11). On October 22, 2015, a

First Amended Complaint was docketed, and on February 26, 2016, a Second Amended

Complaint was accepted. (Docs. 15, 34). Three claims were allowed to proceed

concerning medical care, grievances, and retaliation from 2013-March of 2015. (Doc. 35).

The case was settled on September 6, 2018. (Doc. 116).

On April 23, 2019, Magistrate Judge Mark Beatty entered an order noting that at

the time the Second Amended Complaint was docketed, the Court had accepted

additional proposed complaints which were to be severed into separate cases. (Doc. 126).

The complaints were apparently forgotten. On April 23, 2019, Magistrate Judge Beatty

severed the forgotten complaints into new actions. One of the severed cases was Walker

v. Butler et al., 19-cv-445-SPM (S.D. Ill.).

On May 14, 2019, Plaintiff confirmed his desire to maintain the severed case—

Walker v. Butler, 19-cv-445. The complaint that was used to initiate the severed case

contained allegations about Plaintiff’s ability to file grievances and to access the courts

from 2013-December of 2014. (Doc. 2). The Court conducted an initial screening of that

complaint and dismissed it with leave to amend. (Doc. 9). On December 13, 2019,

Plaintiff filed an Amended Complaint where he again discussed his access to the

institutional grievance procedure, retaliation, and access to the Courts. (Doc. 22). Upon

initial review, the Court identified 17 distinct claims. (Doc. 21). Among those claims, the

Court allowed a single claim to proceed against Defendant Butler for allegedly moving

Plaintiff in December of 2014 from East Cell House to North Two Cell house. (Doc. 21;

Doc. 22 at 22-23). Plaintiff alleged that Butler organized the move as retaliation for

Plaintiff’s filing of grievances and because he attempted to get a restraining order against

certain employees. (Doc. 22 at 22-23).

On September 17, 2020, Plaintiff filed a motion for leave to file an amended

complaint. (Doc. 76). On September 22, 2021, the Court granted leave, reviewed the

complaint, and severed the case into additional lawsuits. (Doc. 102). Among the claims

severed, were the two in this case concerning Defendant Butler’s alleged retaliatory

refusal to give Plaintiff soap in the fall of 2015.

Herein lies the problem. Plaintiff did not raise his claims about Defendant Butler’s

alleged refusal to provide him soap in September-November of 2015 until September 17,

2020. Even allowing Plaintiff a generous amount of time to exhaust administrative

remedies, his September 2020 amended complaint was outside of Illinois’ two-year

statute of limitations application to Section 1983 cases. Having thoroughly reviewed the

evolution of Plaintiff’s claims from his 2015 lawsuit to present, the Court concludes that

the claims severed into this lawsuit are barred by the statute of limitations. Alternatively,

even if the claims are somehow related to Plaintiff’s earlier complaints such that they

would be timely, the claims should still be dismissed as insufficient.

B. Failure to state a claim

Prison officials are responsible for providing inmates with the “basic necessities of

civilized life.” Johnson v. Pelker, 891 F.2d 136, 139 (7th Cir. 1989). Hygiene supplies are a

part of the basic necessities. Gray v. Hardy, 826 F.3d 1000, 1006 (7th Cir. 2016). “Inmates

cannot expect the amenities, conveniences and services of a good hotel; however, the

society they once abused is obliged to provide constitutionally adequate confinement.”

Harris v. Fleming, 839 F.2d 1232, 1235 (7th Cir. 1988). Jail conditions may be uncomfortable

and harsh without violating the Constitution. See e.g., Dixon v. Godinez, 114 F.3d 640, 642

(7th Cir. 1997). The length of the alleged deprivation of a necessary hygiene item is an

important factor in determining if a Constitutional violation occurred. Gray, 826 F.3d at

1005. Courts have found that the denial of hygiene supplies or access to laundry for up

to 32 days did not constitute a violation of the Eighth Amendment. See Teen v. Pannier,

2020 WL 6940826 *1, *6 (S.D. Ill. 2020) (finding that the lack of toothpaste or other hygiene

supplies for some days over the course of a few weeks did not rise to a constitutional

violation); Harris v. Fleming, 839 F.2d 1232, 1235 (7th Cir. 1988) (stay in a filthy cell for five

days, coupled with ten days without soap, toothpaste, or a toothbrush did not violate the

Eighth Amendment); Smith v. Schwartz, 2011 WL 2115831 *1, *2 (S.D. Ill. 2011) (finding

that plaintiff failed to state a claim under the Eighth Amendment for lack of access to

soap, laundry, or showers for 32 days). By contrast, confinement to a cell with a single

bar of soap and a travel-sized tube of toothpaste for eight months was found to be an

Eighth Amendment claim. Sanders v. Sheahan, 198 F.3d 626, 629 (7th Cir. 1999). Here,

Plaintiff’s allegations fall far short of an eight-month deprivation.

Plaintiff alleges that the soap he was provided was inadequate because he was

given two hotel-sized bars, rather than one large green bar. His allegations suggest that

he was given soap monthly, or perhaps on a bi-weekly basis. As a result, he alleges that

he would run out of soap. On at least one occasion, he suggests he ran out of soap or did

not have enough because the laundry facilities were broken so he needed the soap to

clean himself and his laundry. He alleges that Defendant Butler told him she would look

into the matter on October 13, 2015, but he got two small bars of soap on the October 20,

and then on October 23, she again said she would look into the issue. (Doc. 2-2 at 49).

On the second occasion, he asked her what he should do if he ran out of soap, but he did

not report a response. (Doc. 2-2 at 50). Plaintiff’s allegations against Defendant Butler

concerning the provision of adequate soap are legally insufficient. He does not allege

that he was completely without soap. Perhaps he ran out of soap or did not have as much

as he would like for a few weeks at a time, but this does not rise to the level of an Eighth

Amendment violation. Even the complete denial of soap, laundry, or showers for 32 days

has been found inadequate to state an Eighth Amendment claim. Accordingly, Plaintiff’s

claim that Butler violated his Eighth Amendment rights via the denial of adequate

quantities of soap is not sufficient to state a claim.

A prison official may not retaliate against an inmate for engaging in speech or an

activity protected by the First Amendment. “First Amendment retaliation cases require

the petitioner to show that the speech or activity was constitutionally protected, a

deprivation occurred to deter the protected speech or activity, and the speech or activity

was at least a motivating factor in the decision to take retaliatory action.” Manuel v.

Nalley, 966 F.3d 678, 680 (7th Cir. 2020). The ‘motivating factor’ amounts to a causal link

between the activity and the unlawful retaliation.” Id. The test of actionable retaliation

is usually whether the retaliatory conduct alleged would “deter a person of ordinary

firmness” from the exercise of his First Amendment rights. Higgs v. Carver, 286 F.3d 437,

439 (7th Cir. 2002).

Here, Plaintiff alleges that Butler retaliated against him by not providing soap

because he complained about the lack of soap in front of a visitor from the John Howard

Association. The Court will assume that Plaintiff’s speech, a verbal request for soap, was

protected. However, Plaintiff has failed to establish the second element—that a

deprivation occurred to prevent or deter speech. Plaintiff does not allege an actual

deprivation because, as the Court found above, the amount of soap he received did not

amount to a constitutional violation. Plaintiff does not allege, for example, that as a result

of raising the issues to Butler he went from getting limited soap to no soap. Instead, he

simply alleges that he did not get what he asked for, a larger bar of soap. Getting the

same soap he previously had, rather than the soap he wanted, was not a deprivation

implemented to deter speech. Additionally, there is no evidence that Plaintiff was

deterred from filing grievances or raising his concerns with the prison, because he did so

before and after the alleged conversations with Butler. There is also no allegation that a

person of ordinary firmness would be deterred from making a request for soap. Butler

told Plaintiff that it might take a while to fulfill his request, and he continued to make the

request. Plaintiff has not pled a sufficient claim for retaliation against Butler.

Accordingly, this claim will be dismissed for failure to state a claim.

Although pro se litigants are frequently given a chance to file amended pleadings,

the Court will not afford such an opportunity in this case. Notably, this case was severed

from another case wherein Plaintiff was allowed to amend his complaint on multiple

occasions. Walker v. Butler, et al., 21-cv-445-SPM (Docs. 9, 21, 102). The claims in this case

came from Plaintiff’s Third Amended Complaint, in the earlier case. Further

complicating matters, the earlier case had been severed in 2019 from yet another case. See

Walker v. Unknown Party, et al., 15-cv-786-MAB (S.D. Ill. 2019). This is all to say, Plaintiff

has been given ample opportunity to raise any and all claims he had about his conditions

of confinement at Menard. The Court finds it futile to give Plaintiff a chance to amend

two claims that have been severed from numerous other claims, and that are legally

insufficient. The Court does not believe that an opportunity to amend in this lawsuit

would result in claims that are adequately and sufficiently pled. Accordingly, the Court

will now dismiss this Complaint for failure to state a claim.

IT IS SO ORDERED.

Dated: March 28, 2022

/s David W. Dugan

______________________________

DAVID W. DUGAN

United States District Judge