# Wisnauski v. Jeffreys

> District Court, S.D. Illinois · July 21, 2023

URL: https://www.frixlaw.com/law-library/cases/10156610

## Case

- **Court:** District Court, S.D. Illinois
- **Decided:** July 21, 2023
- **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

TIMOTHY WISNAUSKI,
#R27853,

Plaintiff, Case No. 23-cv-02261-SPM

v.

ROB JEFFREYS,
TRAVIS BAYLER,
DR. MYERS,
C HALE,
M LIVELY, and
JOHN/JANE DOE 1,

Defendants.

MEMORANDUM AND ORDER

MCGLYNN, District Judge:
Plaintiff Timothy Wisnauski, an inmate of the Illinois Department of Corrections
(“IDOC”), filed the instant lawsuit pursuant to 42 U.S.C. § 1983 for constitutional deprivations
that occurred at Pinckneyville Correctional Center (“Pinckneyville”). The Complaint is now before
the Court for review pursuant to 28 U.S.C. § 1915A, which requires the Court 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, meritless, 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
Plaintiff alleges that while at Pinckneyville, he was denied adequate medical care regarding
a knee injury and was subjected to retaliation.
I. Medical Care
On November 11, 2021, he was seen by Dr. Myers regarding lab results. (Doc. 1, p. 3-4).
At the appointment, Plaintiff attempted to inform Myers about his medical permits for a knee
injury. Myers told Plaintiff that he did not care about his medical permit because Pinckneyville

was a disciplinary facility. Myers refused to review Plaintiff’s need for medical permits for his
knee and took Plaintiff’s knee brace for no reason. (Id.)
On December 5, 2021, Plaintiff filed an emergency grievance about his appointment with
Myers, the denial of medical permits, and the confiscation of his knee brace. (Doc. 1, p. 4). The
grievance was denied. Grievance Officer Hale responded to the grievance stating that “MD Myers
explained to him he did not meet the criteria outlined by MD Myers as the Medical Director and
medically he did not need a low bunk.” Hale, however, failed to address Plaintiff’s need for his
knee brace. (Id.).
Plaintiff appealed the grievance to the Administrative Review Board. (Doc. 1, p. 4). Rob
Jeffreys and Travis Bayler denied the appeal without a hearing or review of relating evidence and

medical records to support their denial. (Id.).
II. Retaliation
On February 27, 2023, Plaintiff was attacked in the commissary and had to defend himself.
(Doc. 1, p. 5). He was subsequently placed under investigation and charged with several
disciplinary infractions, including “fighting” and “security threat group.” He was placed in
segregation for around seven days. (Id.). He also was punished with loss of contact visits,
commissary usage, school good time, and his ability to transfer to a lower security facility.
On April 24, 0223, Plaintiff filed a grievance seeking the “charge of 205” expunged from
his disciplinary record and requested to “renounce any claimed affiliation and be recognized as

only an individual.” (Doc. 1, p. 5). On May 1, 2023, Correctional Counselor Lively retaliated
against Plaintiff for his participation in the grievance system and denied the grievance without any
kind of adequate review or supporting evidence.
PRELIMINARY DISMISSAL
The Court first dismisses all claims against John or Jane Doe. Plaintiff describes these

unidentified defendants as “administrative officials at the Pinckneyville Correctional Center.”
(Doc. 1, p. 2). Plaintiff does not assert any allegations against unknown administrative officials in
the body of the Complaint. While Plaintiff may use “John Doe” or “Jane Doe” to refer to parties
whose names are unknown, he must still follow Federal Rule of Civil Procedure 8 pleading
standards and include a short, plain statement of the case against that individual. He does not
describe the unknown defendants or identify particular acts or omissions by any specific
individuals who allegedly violated his constitutional rights. Thus, John and Jane Doe are dismissed
without prejudice.
DISCUSSION
Based on the allegations of the Complaint, the Court finds it convenient to designate the

following Counts:
Count 1: Eighth Amendment claim against Myers for deliberate indifference
to a serious medical need by denying Plaintiff the use of a knee brace
and failing to issue certain medical permits.

Count 2: Eighth Amendment claim against Hale, Jeffreys, and Bayler for
failing to take action to correct the inadequate medical care provided
by Myers.

Count 3: Fourteenth Amendment due process claim against Hale, Jeffreys,
and Bayler for the mishandling of Plaintiff’s grievance.

Count 4: First Amendment claim against Lively for retaliating against
Plaintiff for participation in the grievance system.

Count 5: Eighth Amendment claim against Lively for cruel and unusual
punishment.
Count 6: Fourteenth Amendment1 due process claim against Lively for
failing to provide Plaintiff an adequate hearing in response to
Plaintiff’s grievance.

The parties and the Court will use these designations in all future pleadings and orders, unless
otherwise directed by a judicial officer of this Court. Any other claim that is mentioned in the
Complaint but not addressed in this Order should be considered dismissed without prejudice
as inadequately pled under the Twombly2 pleading standard.
Count 1
The Eighth Amendment prohibits the deliberate indifference to a prisoner’s “serious
medical needs,” as deliberate indifference “constitutes the unnecessary and wanton infliction of
pain forbidden by the Constitution.” Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 828
(7th Cir. 2009) (internal quotations omitted). To state such a claim, a prisoner must plead facts and
allegations suggesting that (1) he suffered from an objectively serious medical condition, and (2)
the defendant acted or failed to act with deliberate indifference to the risk of harm from that
condition. Id.; see also Farmer v. Brennan, 511 U.S. 825, 842 (1994). The Eighth Amendment
does not give prisoners entitlement to “demand specific care” or “the best care possible,” but only
requires “reasonable measures to meet a substantial risk of serious harm.” Forbes v. Edgar, 112
F.3d 262, 267 (7th Cir. 1997). Medical negligence or even malpractice does not violate the
Constitution. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Duckworth v. Ahmad, 532 F.3d 675, 679
(7th Cir. 2008); Sanville v. McCaughtry, 266 F.3d 724, 734 (7th Cir. 2001).
As pled, Count 1 is dismissed. Plaintiff’s allegations are too sparse to state an actionable
Eighth Amendment claim against Defendant Myers. First, Plaintiff has not sufficiently pled that

1 Plaintiff states that he is bringing his denial of due process claim against Lively under the Fifth and Fourteenth
Amendments. (Doc. 1, p. 6-7). The Fifth Amendment supplies the guarantee of procedural due process to a federal
inmate, and so, the Court will analyze Plaintiff’s procedural due process claims under the Fourteenth Amendment.
See Dusenbery v. United States, 534 U.S. 161, 167 (2002).
2 See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
he suffered from an objectively serious medical condition. The Seventh Circuit has held that “not
every ache and pain or medically recognized condition involving some discomfort can support an
Eighth Amendment claim.” Gutierrez v. Peters, 111 F. 3d 1364, 1372 (7th Cir. 1997). An
objectively serious medical need is one that has been diagnosed by a physician as mandating

treatment or is so obvious that even a lay person would easily recognize the need for a doctor's
attention. Cesal v. Moats, 851 F. 3d 714, 721 (7th Cir. 2017). In the Complaint, Plaintiff describes
his condition as a “knee injury.” He does not provide a diagnosis or description of the injury or
symptoms. Without more detail, Plaintiff has not established that he suffered from a serious
medical condition. Further, because the extent of his condition is unknown, Plaintiff has failed to
plead that Myers disregarded a serious risk to his health by denying him a knee brace and medical
permits. For these reasons, Count 1 is dismissed without prejudice.
Counts 2 and 3
Plaintiff attempts to hold Jeffreys, Bayless, and Myers liable for the inadequate treatment
he received because they did not properly investigate and review his grievances. They also failed

to “take actions to curb the known pattern” of conduct by Myers to fail to provide adequate medical
care to him. The mishandling or denying of a grievance, however, by those who did not participate
in the underlying conduct does not state a claim. See Owens v. Hinsley, 635 F.3d 950, 953 (7th
Cir. 2011). A prison official who has no involvement in a matter, other than denying a grievance
that was filed to complain about the completed misconduct of another party, does not incur liability
merely by handling the grievance. Therefore, Count 2 dismissed not only because Plaintiff has
failed to plead that he suffers from a serious medical condition and deliberate indifference as
discussed in Count 1, but also because there are no allegations to suggest that the grievance
officials were personally involved in Plaintiff’s medical treatment.

Count 3 is also dismissed. Plaintiff asserts that in reviewing his grievance, Hale failed to
address his complaints regarding his knee brace, and Jeffreys and Bayler did not conduct a hearing
or review evidence related to his complaints. These allegations do not state a Fourteenth
Amendment due process claim. “[A] state’s inmate grievance procedures do not give rise to a
liberty interest protected by the Due Process Clause.” Antonelli v. Sheahan, 81 F.3d 1422, 1430

(7th Cir. 1996). In fact, the Constitution requires no procedure at all, and the failure of state prison
officials to follow their own procedures does not, in and of itself, violate the Constitution. Maust
v. Headley, 959 F.2d 644, 648 (7th Cir. 1992); Shango v. Jurich, 681 F.2d 1091, 1100-01 (7th Cir.
1982).
Count 4
To state a claim for retaliation, a plaintiff must plead that (1) he engaged in First
Amendment activity; (2) he experienced an adverse action that would likely deter First
Amendment activity in the future; and (3) the First Amendment activity was “at least a motivating
factor” in the defendants’ decision to take the retaliatory action. Bridges v. Gilbert, 557 F.3d 541,
551 (7th Cir. 2009). “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) (citation omitted). It is not sufficient for a plaintiff’s claims to “rest on mere
labels, conclusions, or a formulaic recitation of the elements of a cause of action.” Twombly, 550
U.S. at 555.
Plaintiff’s assertion that Lively retaliated against him for participating in the grievance
system by denying his grievance regarding expungement of a disciplinary charge is conclusory
and devoid of any facts supporting his belief that the conduct was retaliatory. Because there is
nothing in the Complaint to suggest that Lively was motivated by Plaintiff’s protected activity,
Count 4 is dismissed without prejudice.
Count 5

Lively’s denial of Plaintiff’s grievance also does not amount to cruel and unusual
punishment. Plaintiff claims that because Lively did not grant his grievance, he was not given a
rehearing on the disciplinary charge and suffered undue punishment in the form of loss of
visitation, good time, commissary rights, and the ability to transfer. However, the act of denying a
grievance, is not the type of conduct the rises to the level of extreme harassment that is required to
violate the Eighth Amendment. See Dobbey v. Ill. Dep’t of Corr., 574 F. 3d 443, 446 (7th Cir.
2009) (“harassment, while regrettable, is not what comes to mind when one thinks of ‘cruel and
unusual’ punishment”). Count 5 is dismissed.
Count 6
Plaintiff states that Lively violated his due process rights by failing to provide him an
adequate hearing on his request to expunge the disciplinary charge when reviewing his grievance.
However, as discussed in Count 3, inmate grievance procedures are not a liberty interest protected
by the Due Process Clause.

Furthermore, Plaintiff does not bring claims against the individuals involved in the
underlying disciplinary hearing and due process does not require multiple levels of review. See
Wolff v. McDonnell, 418 U.S. 539 (1974) (discussing the requirements of due process in the
context of a prisoner disciplinary proceeding); Guentchev v. I.N.S., 77 F. 3d 1036, 1037 (7th Cir.
1996) (“even litigants in the federal courts are not constitutionally entitled to multiple layers of
review”). Accordingly, Count 6 is dismissed.
LEAVE TO AMEND
As all of Plaintiff’s claims are dismissed, the Complaint does not survive preliminary
review pursuant to Section 1915A. The Court notes that not only has Plaintiff failed to state a claim

for relief, but by bringing unrelated claims against different defendants in the same lawsuit, he has
violated the rules of joinder. See FED. R. CIV. P. 18-21. Plaintiff will be given an opportunity to
replead his claims in an amended complaint, however, he is advised that he may pursue only related
claims against a single group of defendants in this case and must file separate lawsuits to pursue
his other claims.

TEMPORARY RESTRAINING ORDER
Plaintiff has filed a motion for a temporary restraining order. (Doc. 9). He states that after
filing the Complaint Defendants have initiated acts of retaliation against him. He has been placed
in restrictive housing and his personal property was confiscated. Plaintiff asserts he is being served
half the amount of food served to those in general population and subjected sexual harassment as
he is forced to be stripped searched five times a week. He claims his cell is invested with bugs and
he is being exposed to environmental smoke due to the high level of drugs.
In order to obtain preliminary injunctive relief through a temporary restraining order
(“TRO”), a plaintiff must demonstrate that: (1) his underlying case has some likelihood of success
on the merits; (2) no adequate remedy at law exists; and (3) he will suffer irreparable harm without

the injunction. Woods v. Buss, 496 F.3d 620, 622 (7th Cir. 2007). A TRO is “an extraordinary and
drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the
burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997). Additionally, “a
preliminary injunction is appropriate only if it seeks relief of the same character sought in the
underlying suit and deals with a matter presented in that underlying suit.” Daniels v. Dumsdorff,
No. 19-cv-00394, 2019 WL 3322344 at *1 (S.D. Ill. July 24, 2019) (quoting Hallows v. Madison
Cty. Jail, No. 18-cv-881-JPG, 2018 WL 2118082, at *6 (S.D. Ill. May 8, 2018) (internal citations
omitted)). See also Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994); Bird v. Barr, 19-cv-
1581 (KBJ), 2020 WL 4219784, at *2 (D.C. Cir. July 23, 2020) (noting that a court “only possesses

the power to afford preliminary injunctive relief that is related to the claims at issue in the
litigation”).
The Court has found that the Complaint, as currently drafted, fails to state a claim, which
makes it impossible for Plaintiff to prove that he is likely to succeed on the merits of his claim.
Additionally, even if the Complaint had survived preliminary review, the motion for a TRO deals

with matters outside the allegations of the Complaint. The motion contains completely new claims
of retaliation and unconstitutional conditions of confinement against unidentified individuals.
Because Plaintiff has failed to meet the requirements for the issuance of a TRO, the motion is
DENIED.
DISPOSITION
For the reasons stated above, the Complaint is DISMISSED without prejudice for failure
to state a claim under 28 U.S.C. §1915A. The motion for temporary restraining order is DENIED.
(Doc. 9).
Plaintiff is GRANTED leave to file a “First Amended Complaint” on or before August
18, 2023. Should Plaintiff fail to file a First Amended Complaint within the allotted time or

consistent with the instructions set forth in this Order, the entire case shall be dismissed with
prejudice for failure to state claim, failure to comply with a court order, and/or for failure to
prosecute his claims. FED. R. CIV. P. 41(b); Ladien v. Astrachan, 128 F.3d 1051 (7th Cir. 1997);
Johnson v. Kamminga, 34 F.3d 466 (7th Cir. 1994); 28 U.S.C. § 1915(e)(2).
It is strongly recommended that Plaintiff use the civil rights complaint form designed for
use in this District. He should label the form, “First Amended Complaint,” and he should use the
case number for this action (No. 23-cv-02261-SPM). To enable Plaintiff to comply with this Order,
the CLERK is DIRECTED to mail him a blank civil rights complaint form.
An amended complaint generally supersedes and replaces the original complaint, rendering

the original complaint void. See Flannery v. Recording Indus. Ass’n of Am., 354 F.3d 632, 638 n.
1 (7th Cir. 2004). The First Amended Complaint must stand on its own without reference to any
previous pleading. The First Amended Complaint is also subject to review pursuant to 28 U.S.C.
§ 1915A.
Plaintiff is ADVISED that he is under a continuing obligation to keep the Clerk of Court

and the opposing parties 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: July 21, 2023

s/Stephen P. McGlynn
STEPHEN P. MCGLYNN
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10156610. Public record. Not legal advice.