# Roberson v. Wills

> District Court, S.D. Illinois · July 1, 2022

URL: https://www.frixlaw.com/law-library/cases/10155190

## Case

- **Court:** District Court, S.D. Illinois
- **Decided:** July 1, 2022
- **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

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

14

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10155190. Public record. Not legal advice.