Roberson v. Wills

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

EDWARD ROBERSON, R60232, )

)

Plaintiff, )

)

vs. )

)

ANTHONY WILLS, )

DRAKE, )

CURTIS DALLAS, )

LAPOSKY, )

CODY SWOULS, )

MARNATTI, )

BRIAN METCALF, )

McCALLIAN, )

ROBERT RHOADES, )

ETHAN KEMPFER, )

ADAMS, ) Case No. 21-cv-1362-DWD

HUNTER, )

MARTIN, )

CONNOR, )

OSBOURNE, )

BRUM-LEVY, )

NICKOLAS MITCHELL, )

MARC C. WILLIAMS, )

JAMES CLAYCOMB, )

BERNER, )

DOODY, )

JANELL STANLEY, )

SHEILA RAMSEY, )

FRANK E. LAWRENCE, )

C/O ROWLAND )

)

Defendants.

MEMORANDUM AND ORDER

DUGAN, District Judge:

This matter is before the Court for consideration of Plaintiff Edward Roberson’s

Motion for Leave to Amend (Doc. 21), his proposed amended complaint, and his Motion

for order to Show Cause for A Preliminary Injunction (Doc. 24). The underlying lawsuit

concerns Plaintiff’s allegation that beginning in October of 2019, and continuing to date,

the defendants have violated his First, Eighth, and Fourteenth Amendment rights by

refusing his religious diet, tampering with his food, placing him a deplorable conditions

of confinement, and retaliating against him for grievances and litigation. As with any

complaint filed by an inmate, Plaintiff’s amended complaint is subject to review under

the terms of 28 U.S.C. § 1915A.

Upon initial review the Court identified seven distinct claims that would proceed

against John Doe Kitchen Supervisor and Anthony Wills:

Claim 1D: Kitchen Supervisor John/Jane Doe retaliated against

Plaintiff for filing grievances/lawsuits against staff by

serving him inadequate food trays, in violation of the First

Amendment;

Claim 1E: Kitchen Supervisor John/Jane Doe retaliated against

Plaintiff for filing grievances/lawsuits by refusing to serve

him a religious meal tray from October 1-16, 2019, in

violation of the First Amendment;

Claim 2A: Wills received numerous letters and grievances from

Plaintiff about his inadequate meals, conditions of

confinement, refusal of medical assistance, and denial of

mental health counseling, but ignored his complaints, in

violation of Plaintiff’s rights under the Eighth Amendment;

Claim 2C: Kitchen Supervisor John/Jane Doe allowed inmate trustees

to tamper with and removed food items from Plaintiff’s

meal trays off camera, resulting in inadequate food

portions, in violation of the Eighth Amendment;

Claim 2I: Wills housed Plaintiff in a poorly ventilated and

dilapidated cell in extreme temperatures with no out-of-cell

exercise from June 28, 2020, to present in violation of his

rights under the Eighth Amendment;

Claim 3C: Wills violated Plaintiff’s First, Eight, and/or Fourteenth

Amendment rights by allowing officers to sabotage his

breakfast trays after Plaintiff filed multiple grievances to

address the issue;

Claim 3F: Wills deprived Plaintiff of a protected liberty interest

without due process of law by housing him in punitive

segregation long term in a cell with a steel door, poor

ventilation, decaying walls, a termite infestation, poor

plumbing, and extreme temperatures without blankets or

fans, in violation of his rights under the Fourteenth

Amendment.

(Doc. 15 at 3). The Court dismissed claims against C/O Rowland, Ethan Kempfer, Robert

Rhoades, C/O Womble, C/O Adams, Cody Swouls, Shane Susler, Heather Hood, Kelly

Priece, and C/O Drake because the allegations were insufficient to establish the personal

involvement of these parties.

Plaintiff has now filed an amended complaint that reincorporates C/O Rowland,

Ethan Kempfer, Robert Rhoades, C/O Adams, Cody Swouls, and C/O Drake. It also

adds claims against many parties Based on the amended complaint, the Court will

modify the existing claims to include additional defendants:

Claim 1D: First Amendment retaliation via inadequate meal trays shall

also include Defendants Kempfer, Rhoades, Swouls,

Connor and McCallian, in addition to John Doe Kitchen

Supervisor;

Claim 1E: First Amendment failure to serve a religious diet tray

against Defendants Lawrence and Claycomb, in addition to

John Doe Kitchen Supervisor;

Claim 2C: Eighth Amendment inadequate meal trays against

Defendants Kempfer, Rhoades, Swouls, Connor and,

McCallian, in addition to John Doe Kitchen Supervisor;

Claim 2I: Eighth Amendment conditions of confinement claim

concerning segregation cell from June 28, 2020, to present

against Defendant Rowland, in addition to Wills;

Claim 3F: Fourteenth Amendment claim for housing in poor

conditions in segregation without due process against

Defendant Rowland, in addition to Wills;

Claim 4: Eighth Amendment excessive force/failure to intervene

claim against Defendants Metcalf, Laposky, McCallian, and

Marnatti for allegedly beating plaintiff after he threw milk

on another officer;

Claim 5: Eighth Amendment excessive force claim against Fenton

and Brown for allegedly attempting to break Plaintiff’s arm

through the chuck hole of his cell;

Claim 6: Eighth Amendment claim against Quincy for depriving

Plaintiff of showers for a year.

(Amended Complaint).

Allegations

The allegations in the amended complaint provide significant detail about the

personal involvement of the defendants that the original complaint lacked. For example,

claims were previously dismissed against defendants such as Rhoades for lack of

allegations that tied his personal actions to any established harm. In the amended

complaint, Plaintiff identified at least five specific dates when Rhoades allegedly

tampered with his tray or provided an inadequate meal. (Amended Complaint at 12, 14,

15, 16, 18). Detailed allegations such as these are sufficient to present a plausible claim,

so the defendants like Rhoades were incorporated into pre-existing claims. Most of the

allegations in the amended complaint catalogue an ongoing course of retaliation or harm

by defendants by tampering with Plaintiff’s food trays. Plaintiff alleges that he received

trays that were spoiled, that contained live bugs and rat feces, and that were otherwise

contaminated with filth or hair. He asserts that his trays were tampered with as a form

of retaliation for his filing of grievances and lawsuits about the conditions of his

confinement at Menard. The Court will not exhaustively recite these facts because they

are clearly set forth in the complaint, and claims premised on these facts will be allowed

to proceed against defendants who were properly associated with this conduct.

Plaintiff’s complaint also contains a smattering of new allegations about other

scenarios. He alleges that on August 21, 2020, Swouls brought him a contaminated tray,

and refused to exchange it for a new tray. (Amended Complaint at 9). Out of frustration,

Plaintiff threw the contents of the milk carton onto Swouls. Defendants Laposky and

Berner arrived at his cell after the incident and told him to cuff-up. Both were heated, so

out of fear Plaintiff requested another officer. A non-party came and escorted him to the

medical wing because it was apparently policy to take him there after an incident. After

he was done at the medical unit, Plaintiff was placed in a bullpen where Defendants

Laposky, Metcalf, McCallian, and Marnatti physically assaulted him with punches, kicks,

and other blows. (Amended Complaint at 10). He characterized the incident as excessive

force and a failure to intervene in each other’s conduct. (Amended Complaint at 22).

Plaintiff additionally alleges that on or about December 20, 2020, correctional

officers Brown and Fenton tried to break his arm through the chuck hole of his cell when

he requested a grievance form or a supervisor. (Amended Complaint at 13).

On multiple occasions Plaintiff mentions cellhouse shakedowns and the

confiscation and destruction of his personal property. He also frequently mentions non-

responses to grievances.

At the end of the amended complaint, Plaintiff presented two counts, with

numerous subclaims. Although he did not mention Defendants Ramsey or Stanley by

name in the factual allegations, he lists them with subclaims in this section.

Plaintiff seeks declaratory and compensatory relief.

As a procedural matter, on February 1, 2022, the Court issued an Initial Scheduling

Order that gave Plaintiff until April 1, 2022, to conduct discovery as to the identity of

John/Jane Doe Kitchen Supervisor, and to file a motion to substitute. (Doc. 16). To date,

Plaintiff has not filed a motion to substitute. Defendant Wills alleges that Plaintiff never

sought information from IDOC about John/Jane Doe’s identity. (Doc. 22).

Preliminary Dismissals

As the Court previously explained, to state a proper claim under Section 1983, a

plaintiff must clearly describe the individual actions taken by named defendants that

caused him harm. Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995). Many of the

defendants identified in amended complaint were mentioned on a single occasion. For

example, Plaintiff only mentioned Defendant Drake once and stated that on August 10,

2020, he told Drake he did not get the proper kosher diet tray. Drake told him he would

check on the issue, and Drake reported back to him that he was not on the approved list

so he would have to resubmit for the diet. This one-off interaction is not sufficient to

allege that Drake caused Plaintiff any harm under Section 1983.

Likewise, there are many defendants that Plaintiff only mentioned a single time,

including Defendants Williams (14), Adams (17), Hunter (18), Martin (18), Osbourne (17),

Brum-Levy (17), Mitchell (15), and Doody (5). As to this group of defendants, he alleges

that on various dates throughout 2021 these individuals delivered one of his meal trays

to his cell that was somehow contaminated. Although the Court does not take allegations

of this nature lightly, these allegations do not rise to the level of a constitutional

deprivation.

To state an Eighth Amendment claim for cruel and unusual punishment, an

inmate must demonstrate an extreme deprivation or something that was a serious and

excessive risk to his health or safety. See e.g. Turner v. Miller, 301 F.3d 599, 603 (7th Cir.

2002); Farmver v. Brennan, 511 U.S. 825, 834 (1994). An inmate must demonstrate an

objective risk or harm, as well as subjective intent by the defendant. A plaintiff must

establish that the defendant had knowledge of a serious harm or risk and the official

failed to prevent unreasonable peril. See e.g. Anderson v. Morrison, 835 F.3d 681, 683 (7th

Cir. 2016). Specifically, as to these defendants whom the Plaintiff alleges served him bad

or contaminated trays on only one occasion, Plaintiff has not sufficiently established an

objective risk or subjective intent. He does not allege that these defendants knew there

was a larger problem taking place, nor does he demonstrate that they as individuals had

any personal animus towards him. The mention of these defendants is distinct from

Plaintiff’s naming of others who repeatedly brought him spoiled trays and acknowledged

a retaliatory motive. For example, Plaintiff alleges Kempfer served him contaminated

trays on at least six occasions, and he also overheard Kempfer say that he should stop

filing so many lawsuits. These allegations suggest both objective action and a subjective

intent. This type of behavior, coupled with subjective intent is not present in the

allegations against Defendants who only served a bad tray on one occasion. Thus, the

Court will dismiss the claims against Defendants Williams, Adams, Hunter, Martin,

Osbourne, Brum-Levy, Mitchell, and Doody as insufficient.

Likewise, the Court will also dismiss Plaintiff’s claim against Defendant Berner as

insufficient because it is not clear what harm Berner caused. Plaintiff alleged that on

August 21, 2020, when he threw milk on Defendant Swouls, Berner and Laposky reported

to his cell. He reported that Berner was verbally aggressive, but he also subsequently

explained that Berner calmed down and had a third officer report to safely escort him to

the healthcare unit. Although this interaction may have been unpleasant for Plaintiff,

there is no indication of a constitutional harm by Berner. Thus, the claim against Berner

is dismissed without prejudice.

It is also unclear what harm Defendant Drake caused. Plaintiff alleges that on

August 10, 2020, he stopped Drake during breakfast service to inform him of an issue

with kosher diet trays. (Amended Complaint at 7). Drake said he would check with the

kitchen, and he later informed Plaintiff that he was not signed up for the tray and would

need to request it again. This interaction does not constitute a violation of Plaintiff’s

constitutional rights, so the claim against Drake will be dismissed.

The claim against Curtis Dallas is also insufficient because the allegations are

limited. Plaintiff alleges that on August 16, 2020, Swouls gave him an inadequate tray,

and refused to replace it. Plaintiff banged on his cell door and eventually Dallas came to

his cell. He asked for a new tray. Dallas insisted that Swouls does not tamper with trays,

and he told Plaintiff he was lucky to get fed. He also said Plaintiff should sit down or he

would mace his cell. (Amended Complaint at 7-8). The next day Plaintiff told another

officer about the tray issue. Several minutes later an unidentified person shot mace into

his cell. In the enumerated claims section, Plaintiff alleges Dallas violated his Eighth

Amendment rights by spraying his cell with mace, but in the factual allegations, he states

vaguely that the day after he spoke to Dallas “someone” maced his cell. The

inconsistency dooms this claim. It is not sufficiently clear that Dallas took any harmful

action that violated Plaintiff’s rights.

Plaintiff mentions Defendant Metcalf multiple times in the complaint, but there is

only one instance where he mentions Metcalf in association with providing an inadequate

tray. The allegation is that “On August 31, 2020, C/O’s Brian Metcalf, Robert Rhoades,

and Ethan Kempfer started to knowingly and willingly hand plaintiff inadequate

trays…after filing grievances which went unanswered both Rhoades and Kempfer

continued to harass me.” (Amended Complaint at 12). This allegation does not show

sufficient personal involvement on Defendant Metcalf’s behalf. So Metcalf is dismissed

from the two claims about inadequate trays (Claims 1D and 2C).

There are at least two parties that the Plaintiff does not mention in the factual

allegations, but whom he mentions in his enumerated claims. These defendants are Janell

Stanley and Sheila Ramsey. As to Ramsey, Plaintiff alleges that she violated his First

Amendment rights by either refusing to process, or by destroying, his grievances. There

is no right to access to an internal grievance procedure, or to processing of grievances, so

Plaintiff has not stated a claim against Ramsey. See e.g., George v. Smith, 507 F.3d 605, 609

(7th Cir. 2007) (denying a grievance or failing to investigate it does not make an official

liable for damages).

As to Defendant Stanley, Plaintiff mentions Stanley in passing in an enumerated

claim by alleging that Stanley violated his Eighth Amendment rights along with Wills by

placing him in a poorly ventilated and dilapidated cell from June 28, 2020, to present.

(Amended Complaint at 21). This allegation does not give any information about

Stanley’s personal involvement, so it is insufficient, and Stanley will be dismissed.

Analysis

The Court is left with the claims added against Rowland, Laposky, Swouls,

Marnatti, Brian Metcalf, McCallian, Robert Rhoades, Ethan Kempfer, James Claycomb,

and Frank E. Lawrence. The claims will be allowed to proceed as additions to the

previously enumerated claims 1D, 1E, 2C, 2I, and 3F as explained above.

Claim 4 against Metcalf, Laposky, Marnatti, and McCallian alleges excessive force

following the incident where Plaintiff threw milk on Swouls. Although the issue arose

because Plaintiff was apparently upset about his tray issues—it is not directly intertwined

with most of the allegations in this lawsuit, so the Court finds it improper to allow it to

be added via this amended complaint. See George v. Smith, 507 F.3d 605, 607 (7th Cir.

2007) (multiple unrelated claims against multiple defendants should not be joined

together in a single lawsuit). If Plaintiff believes that he has a claim for excessive force or

failure to intervene related to this incident, it would be more properly presented in

separate litigation.

In Claim 5, Plaintiff alleges that on December 20, 2020, officers Fenton and Brown

attempted to break his arm through the chuck hole of his cell. As with Claim 4, there is

no apparent relation to this lawsuit. Additionally, Plaintiff did not list these two

individuals as defendants in this case, so the claim is not properly presented.

Finally, in Claim 6, Plaintiff alleges that Quincy prevented him from having access

to a shower for several months. Quincy was not properly named as a defendant, and it

does not appear that this factual allegation is related to the majority of this lawsuit, so it

will also be dismissed.

Any other claims that were not explicitly identified or discussed were insufficient

and are dismissed without prejudice.

John Doe Kitchen Supervisor

As noted above, Plaintiff was given deadlines to exchange information with

Defendant Wills about the identity of the John/Jane Doe kitchen supervisor, and he was

instructed to file a motion to substitute by April 1, 2022. That deadline elapsed with no

motion to substitute. The Court will give Plaintiff one final opportunity to ascertain John

Doe’s identity and to file a motion to substitute. Plaintiff shall tender any identifying

information to the Defendants by July 29, 2022, the Defendants shall have until August

15, 2022, to provide identifying information, and Plaintiff must file a motion to substitute

by August 31, 2022. A failure to file a motion to substitute will result in the complete

dismissal of any claims against John Doe Kitchen Supervisor.

Motion for a Preliminary Injunction

Plaintiff’s latest motion for a preliminary injunction or a temporary restraining

order (Doc. 24) is styled as an order that directs the defendants to take certain actions.

Specifically, Plaintiff seeks an order that forces Defendants Wills and Rowland to arrange

for an immediate appointment with a solar plexus specialist to evaluate the condition of

his stomach, and to provide a treatment plan to restore full stomach function. (Doc. 24 at

1-2). In a supporting declaration, Plaintiff avers that the inadequate meals he complains

of in this lawsuit have caused his stomach to feel stiff and painful. (Doc. 24-1 at 1-2). He

has sought care from the medical unit, but he alleges his appointments have been delayed

as part of a policy to prioritize care for inmates other than those housed in segregation.

Additionally, the medical staff has only provided him generic pepto bismal, which he

claims is ineffective.

Plaintiff’s Motion will be denied because it is not directly related to an underlying

claim in this lawsuit. Plaintiff seeks medical relief, but he does not have any substantive

claims about medical care. Injunctive relief must be related to issues in the underlying

lawsuit. See e.g. Daniels v. Dumsdorff, et al., Case No. 19-cv-394 (S.D. Ill. 2019); see also

Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994) (“[A] party moving for a preliminary

injunction must necessarily establish a relationship between the injury claimed in the

party's motion and the conduct asserted in the complaint.”); Pacific Radiation Oncology,

LLC v. Queen's Medical Ctr., 810 F.3d 631, 636 (9th Cir. 2015) (“there must be a relationship

between the injury claimed in the motion for injunctive relief and the conduct asserted in

the underlying complaint.”). Accordingly, the Motion (Doc. 24) is DENIED.

Disposition

Plaintiff’s Motion to File an Amended Complaint [21] is GRANTED. The Clerk of

Court is DIRECTED to DOCKET the proposed amended complaint. Plaintiff’s Motion

for Injunctive Relief (Doc. 24) is DENIED.

Based on the analysis above, the following parties will be ADDED to existing

claims: Claim 1D will proceed against Defendants Kempfer, Rhoades, Swouls, Connor

and McCallian; Claim 1E will proceed against Defendants Lawrence and Claycomb;

Claim 2C will proceed against Defendants Kempfer, Rhoades, Swouls, Connor and

McCallian; Claim 2I will proceed against Defendant Rowland; and Claim 3F will proceed

against Rowland. The Clerk is DIRECTED to SERVE the new parties consistent with

Document 8. The new parties are: Ethan Kempfer, Robert Rhoades, Cody Swouls,

Connor, McCallian, James Claycomb, Frank E. Lawrence, and C/O Rowland.

By contrast, Claims 4-6 will be DISMISSED for failure to state a claim. The Clerk

is DIRECTED to TERMINATE Defendants Laposky, Marnatti and Metcalf because

Claim 4 was the only remaining claim against them. The Clerk is DIRECTED to

TERMINATE Brown and Fenton because Claim 5 will not proceed, and the Clerk is

DIRECTED to TERMINATE Quincy because Claim 6 will not proceed. The Clerk is also

DIRECTED to TERMINATE Defendants Drake, Dallas, Adams, Hunter, Martin,

Osbourne, Brum-Levy, Mitchell, Williams, Berner, Doody, Stanley, Ramsey because

Plaintiff has failed to state a claim against them that would fit any of the above defined

claims.

As discussed above, Plaintiff must file a motion to substitute John/Jane Doe

Kitchen Supervisor by August 31, 2022, or all claims against that party will be dismissed.

The stay currently in place for Defendant Wills regarding discovery will be

continued. Once the new parties have appeared and filed answer the Court will set a

new overall initial scheduling order for all parties.

IT IS SO ORDERED.

Dated: July 1, 2022

el J

DAVID W. DUGAN

United States District Judge

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