McMahan v. Bolock

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

DANIEL R. MCMAHAN,

Plaintiff,

v. Case No. 23-cv-3348-NJR

PULASKI COUNTY JAIL STAFF, CPT.

ADKINS, SGT. BULLOCK, and

OFFICER FERGUSON,

Defendants.

MEMORANDUM AND ORDER

ROSENSTENGEL, Chief Judge:

Plaintiff Daniel R. McMahan, who at the time he filed his Complaint was a

detainee at the Pulaski County Jail, brings this action for deprivations of his constitutional

rights pursuant to 42 U.S.C. § 1983.1 On October 20, 2023, McMahan filed his Complaint

alleging various violations of his constitutional rights while at the Pulaski County Jail.

On October 27, 2023, McMahan filed an Amended Complaint alleging that defendants

failed to protect him from sexual assault by another inmate, in violation of the Fourteenth

Amendment.

1 McMahan’s original Complaint referenced both Section 1983 and Bivens v. Six Unknown Named

Agents of Fed’l Bureau of Narcotics, 403 U.S. 388 (1971). His Amended Complaint fails to allege any

basis for his claims other than the claims involve a federal question under 28 U.S.C. § 1331. But

McMahan sues county employees for events which occurred while he was a detainee at Pulaski

County Jail. Thus, it appears that his claims are properly analyzed under Section 1983. See Grady

v. Aragona, Case No. 20-cv-1206-JPG, 2020 WL 7123146 at *2 (citing Belbachir v. County of McHenry,

726 F.3d 975, 978 (7th Cir. 2013); Urias-Urias v. Youell, Case No. 06-3071, 2006 WL 1120434, *1 n.1

(C.D. Ill., April 26, 2006); Lewis v. Downey, 581 F.3d 467, 471 n.3 (7th Cir. 2009)).

This case is now before the Court for preliminary review of the Amended

Complaint 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).

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).

In Forma Pauperis Motion

Section 1915(g) prohibits a prisoner from bringing a civil action or appealing a civil

judgment in forma pauperis (“IFP”), “if the prisoner has, on 3 or more prior occasions,

while incarcerated or detained in any facility, brought an action or appeal in a court of

the United States that was dismissed on the grounds that it is frivolous, malicious, or fails

to state a claim upon which relief may be granted, unless the prisoner is under imminent

danger of serious physical injury.” See 28 U.S.C. § 1915(g). A review of documents filed

in the electronic docket of this Court and on the Public Access to Court Electronic Records

(“PACER”) website (www.pacer.gov) reveals that McMahan has had more than three

cases which were dismissed on grounds that they were frivolous, malicious, or failed to

state a claim upon which relief may be granted. See McMahan v. Franklin County Sheriff’s

Dep’t, Case No. 07-cv-447-TIA (E.D. Mo. dismissed Mar. 19, 2007); McMahan v. Berliner,

Case No. 07-cv-633-TIA (E.D. Mo. dismissed April 9, 2007); McMahan v. Franklin County

Sheriff’s Dep’t, Case No. 07-cv-1154-TIA (E.D. Mo. dismissed Aug. 15, 2007).

Thus, McMahan has accumulated three “strikes” for purposes of Section 1915(g)

and cannot proceed IFP unless he is under imminent danger of serious physical injury.

28 U.S.C. § 1915(g).

“Imminent danger” within the meaning of Section 1915(g) requires a “real and

proximate” threat of serious physical injury to a prisoner. Ciarpaglini v. Saini, 352 F.3d

328, 330 (7th Cir. 2003) (citing Lewis v. Sullivan, 279 F.3d 526, 529 (7th Cir. 2002)). Courts

“deny leave to proceed [as a pauper] when a prisoner’s claims of imminent danger are

conclusory or ridiculous.” Id. at 331 (citing Heimermann v. Litscher, 337 F.3d 781, 782 (7th

Cir. 2003)). Additionally, “[a]llegations of past harm do not suffice” to show imminent

danger; rather, “the harm must be imminent or occurring at the time the complaint is

filed,” and when prisoners “allege only a past injury that has not recurred, courts deny

them leave to proceed [as a pauper].” Id. at 330.

The Court notes that McMahan is no longer detained at Pulaski County Jail. Since

the filing of his Complaint, he has transferred to the Federal Transfer Center in Oklahoma

City, Oklahoma (Doc. 11). Although McMahan is no longer detained at the Pulaski

County Jail, his transfer does not moot the imminent danger analysis because the analysis

requires the Court to consider whether McMahan was in imminent danger at the time of

filing. See Ciarpaglini, 352 F. 3d at 330 (“The question is whether these allegations are

sufficient to find that [the plaintiff], when he filed his complaint, satisfied the ‘imminent

danger of serious physical injury’ requirement”); Duncan v. Spiller, No. 15-cv-087-MJR-

SCW, 2015 WL 13740745, at *6 (S.D. Ill. Oct. 28, 2015) (“the standard for proceeding IFP

is whether the inmate was in imminent danger at the time he filed the Complaint”); Naseer

v. McArdle, No. 17-cv-509-jdp, 2020 WL 1638844, at *4 (W.D. Wisc. Apr. 2, 2020) (“The

imminent danger requirement applies to a plaintiff’s status at the time he filed his

complaint. So a change in those conditions after filing of the complaint does not affect the

imminent danger analysis.”). Thus, the Court must still make a determination regarding

McMahan’s imminent danger claim even though he transferred to a different facility after

filing the Complaint.

The imminent danger exception is available for “genuine emergencies,” where

“time is pressing.” Lewis v. Sullivan, 279 F. 3d 526, 531 (7th Cir. 2002). McMahan alleges

that he was sexually assaulted by his cellmate. Prior to the attack, he informed guards of

the threats made by the cellmate, but they ignored his pleas for protective custody. At the

time McMahan filed his Complaint, he was still detained at Pulaski County Jail in the

same general area as his attacker (Docs. 5 and 6). He alleged that his attacker was a

member of a dangerous gang and McMahan received threats from other inmates when

he went to the recreation area or the shower (Doc. 6, p. 1). Based on the allegations in his

motions to waive the three-strikes rule (Docs. 5 and 6), it appears that McMahan was

potentially at risk at the time he filed his Complaint. Thus, the Court will allow McMahan

to proceed in forma pauperis under the “imminent danger” exception to the “three-strikes”

rule, at least preliminarily. If his allegations of imminent physical harm prove to be untrue,

then he must pay the whole filing fee promptly. See Sanders v. Melvin, 873 F.3d 957, 961

(7th Cir. 2017). And if it turns out that he has lied in an effort to manipulate the Court,

the case may be dismissed with prejudice as a sanction even if McMahan pays the full

filing fee. Id.

Accordingly, McMahan’s IFP Motion (Doc. 5) and motion to waive (Doc. 6) are

GRANTED. The initial partial filing fee and payment scheme will be set forth in a

separate order.

The Complaint

Turning to McMahan’s Amended Complaint (Doc. 4), he makes the following

allegations: While a detainee at the Pulaski County Jail, McMahan was housed in E-Pod,

Cell #1, a two-man cell containing two bunk beds, one sink, and one toilet (Id. at p. 2). On

September 23, 2023, while McMahan was in the shower room next door to his cell, his

cellmate threatened to rape him (Id.). After his shower, Officers Bullock, Ferguson, and

other unnamed jail officers, transferred McMahan from the showers back to his cell.

McMahan informed the officers that his cellmate, identified only by the nickname

“Ricco,” intended to attack him. McMahan stated that he was in fear for his life, wanted

protective custody, and requested to be separated from his cellmate (Id.). In response, the

officer laughed and forced McMahan to return to his cell. On September 25, 2023, Ricco

sexually assaulted McMahan. McMahan alleges that Bullock and Ferguson failed to

protect him from the assault when they refused to remove him from Cell #1 after his

cellmate threatened him.

Preliminary Dismissals

Although McMahan lists Captain Adkins as a defendant in his case caption, he

fails to include any allegations against him in the statement of claim. Thus, any claim

against Captain Adkins is DISMISSED without prejudice. McMahan also lists Pulaski

County Jail Staff in the case caption and alleges that “several other officers” were present

when he informed Bullock and Ferguson of his cellmate’s threats (Doc. 4, p. 2). Although

McMahan may certainly allege claims against identified John/Jane Does (i.e., John Doe

#1, John Doe #2), he includes a generic group of staff and officers. These claims are too

generic to survive threshold review as he does not describe the officers or even state the

number of officers present when he was placed back in Cell #1. Thus, any claim against

unknown jail officers is DISMISSED without prejudice.

Discussion

Based on the allegations in the Complaint, the Court designates the following

count:

Count 1: Fourteenth and/or Eighth Amendment claim against Officer

Ferguson and Officer Bullock for failing to protect

McMahan from his cellmate’s assault.

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 Twombly pleading

standard.2

Although it is not clear from the Amended Complaint as to whether McMahan

was a pre-trial detainee or convicted at the time he was detained at the Pulaski County

Jail, he states a viable claim under either the Fourteenth or Eighth Amendment. See Budd

2 See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (an action fails to state a claim upon

which relief can be granted if it does not plead “enough facts to state a claim to relief that is

plausible on its face”).

v. Motley, 711 F.3d 840, 842 (7th Cir. 2013) (pretrial detainee’s claims arise under the

Fourteenth Amendment rather than Eighth Amendment); Weiss v. Cooley, 230 F.3d 1027,

1032 (7th Cir. 2000).McCann v. Ogle Cty., Illinois, 909 F.3d 881, 886 (7th Cir. 2018) (citing

Miranda v. County of Lake, 900 F.3d 335 (7th Cir. 2018)). McMahan alleges that he informed

both Bullock and Ferguson of his cellmate’s threats to sexually assault him and he

requested protective custody. The officers failed to remove him from the cell and merely

laughed at his requests. That is enough to state a claim under either the Fourteenth

Amendment or Eighth Amendment standard. See Kemp v. Fulton County, 27 F. 4th 491,

495-97 (7th Cir. 2022) (pretrial detainee’s failure to protect claim arises under the

Fourteenth Amendment, an objective standard requiring detainee to demonstrate that

defendant’s actions were objectively unreasonable, that he “acted purposefully,

knowingly, or perhaps even recklessly”). See also Brown v. Budz, 398 F.3d 904, 909 (7th Cir.

2005) (Eighth Amendment failure to protect claim requires that a plaintiff show that

(1) “he is incarcerated under conditions posing a substantial risk of serious harm,” and

(2) the defendants “acted with deliberate indifference to that risk.”).

Disposition

For the reasons stated above, McMahan’s motion for leave to proceed in forma

pauperis (Doc. 5) and motion to waive three-strikes rule (Doc. 6) are GRANTED. Count 1

shall proceed against Officer Ferguson and Officer Bullock. Pulaski County Jail staff and

Captain Adkins are DISMISSED without prejudice.

The Clerk of Court shall prepare for Defendants Officer Ferguson and Officer

Bullock: (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 each defendant’s

place of employment as identified by McMahan. 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 that

defendant, and the Court will require that defendant to pay the full costs of formal

service, to the extent authorized by the Federal Rules of Civil Procedure.

If a defendant can no longer be found at the work address provided by McMahan,

the employer shall furnish the Clerk with the defendant’s current work address, or, if not

known, 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. Address information shall not be maintained

in the court file or disclosed by the Clerk.

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. Section 1997e(g).

Pursuant to Administrative Order No. 244, Defendants need only respond to the issues

stated in this Merit Review Order.

If judgment is rendered against McMahan, and the judgment includes the

payment of costs under Section 1915, he will be required to pay the full amount of the

costs, regardless of whether his application to proceed in forma pauperis is granted. See

28 U.S.C. § 1915(f)(2)(A).

Finally, McMahan is ADVISED that he is under a continuing obligation to keep

the Clerk of Court and each 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 14 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: February 2, 2024 7 g i)

NANCY J. ROSENSTENGEL

Chief U.S. District Judge

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 your

Complaint. It will likely take at least 60 days from the date of this Order to receive the

defendants’ Answer, but it is entirely possible that it will take 90 days or more. When all

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 this time, unless specifically

directed to do so.