Morgan v. Cash

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

DERRICK MORGAN, )

A10514, )

)

Plaintiff, )

)

vs. )

)

LISA F. CASH, ) Case No. 24-cv-121-DWD

DIETARY SUPERVISOR ESTER, )

DIETARY SUPERVISOR REN, )

M. LIVELY, )

LIEUTENANT FRANK, )

DAVID MITCHESS, )

)

Defendants. )

MEMORANDUM & ORDER

DUGAN, District Judge:

Plaintiff Derrick Morgan, an inmate of the Illinois Department of Corrections

(IDOC) currently detained at Pinckneyville Correctional Center (Pinckneyville), brings

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

constitutional rights. (Doc. 1). Specifically, Plaintiff alleges that he was harassed at work,

physically assaulted, and eventually terminated, all without cause and for racial or

religious reasons. He further claims the incident was not investigated in a timely manner.

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

According to the Complaint, on December 29, 2022, Defendant Lisa Cash became

the new dietary supervisor to oversee Plaintiff at his prison job. (Doc. 1 at 7). Cash saw

Plaintiff wearing a religious head dress (a kufi) and she voiced her dislike for the Muslim

community. Plaintiff took the verbal remarks as an indication he should not wear his

kufi to work, and he stopped doing so. On January 6, 2022, Cash verbally lashed out at

Plaintiff, calling him lazy and threatening him with a ticket even though his quality of

work was the same as his colleagues. On January 10, 2022, Cash repeated the verbal

harassment, this time adding statements that Plaintiff might work harder if she whipped

him and inviting him to work at her home cutting grass and power washing her house.

Plaintiff viewed the remarks as “very racist.” Cash also made remarks about his religion.

Cash continued the verbal harassment on multiple occasions in the presence of anyone,

including Defendants Ren, Ester, and other prison employees. No one ever participated,

but they also did not reprimand or report Cash. Plaintiff alleges that harassment like this

is common at Pinckneyville, and that it flourishes because most staff are related or are

friends.

On January 18, 2022, Cash again threated Plaintiff and commented that he must

be unable to think without his “dumb a** Al-Queda s*** on [his] head.” (Doc. 1 at 8). The

harassment continued on January 27, 2022. Things escalated on February 1, 2022, when

Cash summoned Plaintiff to the supervisor’s office. Plaintiff began to speak with

Defendant Ester when Cash lunged at him with open palms and shoved him, while

yelling for him to “get the f*** out of here.” Plaintiff was shocked and asked Cash why

she placed her hands on him, but she twice repeated the commands for him to leave.

Plaintiff tried to walk around Cash to speak with Ester, but Cash grabbed his smock and

pushed him again. (Doc. 1 at 8). A non-party officer escorted Plaintiff back to his housing

unit at Cash’s behest.

On February 2, 2022, Plaintiff reported to work, but was then notified by

Defendant Ren that he was no longer on the payroll, so he could not stay in the dietary

unit. (Doc. 1 at 9). Plaintiff later learned he had been fired. Plaintiff reported his

termination to his fiancé, who got word to Defendant Frank. Plaintiff was interviewed

by Frank of internal affairs.

On February 13, 2022, Plaintiff filed a grievance. He also, with the assistance of a

‘coalition group’ (Lyon Law), forwarded his allegations to Defendant David Mitchess via

letter. As of May 11, 2022, Plaintiff had not received an answer to his grievance or

correspondence to Mitchess.

Plaintiff finally received a grievance response on March 3, 2023, at which time the

prison found no evidence of wrongdoing by Cash. By this time, Cash had retired. (Doc.

1 at 9). Plaintiff appended a copy of the grievance to his complaint. (Doc. 1 at 13-14).

In addition to the factual narrative, Plaintiff included a “statement of claim” within

which he listed each defendant by name and identified a variety of legal theories for relief.

For example, he alleged Mitchess was the Warden and is sued in his official capacity for

failing to oversee subordinates, for failing to protect inmates from cruel and unusual

punishment, and for failing to properly investigate the allegations after the grievance or

correspondence. (Doc. 1 at 9).

As relief, Plaintiff seeks monetary compensation. He also seeks declaratory and

injunctive relief, to include an investigation into compliance with employee standards

within the IDOC. (Doc. 1 at 11).

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

counts:

Claim 1: First, Eighth, or Fourteenth Amendment violations by

Defendant Cash for her conduct in harassing Plaintiff based

on his religion and race, for pushing Plaintiff on February

1, 2022, and for terminating Plaintiff from his employment;

Claim 2: Eighth Amendment failure to intervene claim by Defendant

Ester for failing to stop Cash’s physical assault;

Claim 3: State law harassment claim against Cash;

Claim 4: State law assault claim against Cash;

Claim 5: State law defamation of character claim against Cash.

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 claim that is mentioned

in the Complaint but not addressed in this Order is considered dismissed without

prejudice as inadequately pled under Twombly. See Bell Atl. 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 that is plausible on its face”).

Preliminary Dismissals

Plaintiff alleges that Defendants Mitchess and M. Lively violated his rights by

failing to properly investigate or respond to the allegations in his grievance or other

correspondence to the prison, but the mere mishandling of a grievance is insufficient to

give rise to a § 1983 claim. See e.g., Owens v. Hinsley, 635 F.3d 950, 953 (7th Cir. 2011)

(prison grievance procedures are not mandated by the First Amendment, and the alleged

mishandling of grievances by those who did not otherwise participate in underlying

conduct is insufficient to state a claim.) Thus, any claim premised on grievance responses

is insufficient. At most, Plaintiff claims that Defendant Lively participated in nepotism

or cronyism by not responding to his grievance until after Defendant Cash retired, but

this bald assertion is insufficient to save a claim against Lively. Plaintiff has failed to state

any valid claim against Lively so she will be dismissed.

Plaintiff further alleges that Defendant Mitchess should be held liable in his official

capacity for failing to oversee subordinates or for failing to protect inmates from assaults

by staff, but allegations at this high level are generally insufficient because there is no

respondeat superior liability under § 1983. See e.g., Burks v. Raemisch, 555 F.3d 592, 596

(7th Cir. 2009) (“Section 1983 does not establish a system of vicarious responsibility.

Liability depends on each defendant’s knowledge and actions, not on the knowledge or

actions of the persons they supervise.”). As to the risk of harassment or an assault, like

what Plaintiff says he experienced at the hands of Cash, there is no indication that

Mitchess had advance warning of Cash’s propensity to harass or assault inmates, so he

had no specific opportunity to intervene. Accordingly, the Court finds that Plaintiff has

failed to state a viable claim against Mitchess, and Mitchess will be dismissed.

Plaintiff has named dietary supervisor Ren as a defendant, but the only allegation

against Ren is that Ren informed Plaintiff on February 2, 2022, that he was no longer on

the dietary payroll. Plaintiff does not indicate that this was of Ren’s doing, or that Ren

did anything unlawful or wrong at all. At most, he suggests that Ren was sometimes in

Cash’s presence when she verbally harassed Plaintiff, but Ren and others failed to react

or to report Cash. This is not sufficient to proceed, and Ren will be dismissed.

Finally, Plaintiff named Lt. Frank for his failure to properly investigate Cash’s

conduct, or for deliberately delaying his investigation in furtherance of nepotism or

cronyism. None of these theories aligns with a basis for recovery under § 1983 premised

on the violation of a constitutional right, so Lt. Frank is also dismissed.

Plaintiff seeks injunctive relief in the form of a court order directing IDOC to

review compliance with employee standards, but the constitution does not require

compliance with prison rules, regulations, policies, or laws, so injunctive relief of this

nature is not warranted. See e.g., Thompson v. City of Chi., 472 F. 3d 444, 455 (7th Cir. 2006)

(Section 1983 “protects plaintiffs from constitutional violations, not violations of state

laws or…departmental regulations and police practices.”).

DISCUSSION

Claims 1, 3-5

Plaintiff’s allegations against Cash encapsulate a course of verbal harassment

premised on his religion and his race. Plaintiff identifies as Muslim, but he did not supply

information about his race to buttress his theories about racial harassment. A prima facie

case of discrimination under the equal protection clause requires a plaintiff to establish

that he “is a member of a protected class,” that he “is otherwise similarly situated to

members of the unprotected class,” and that he “was treated differently from members

of the unprotected class.” Brown v. Budz, 398 F.3d 904, 916 (7th Cir. 2005). Indeed, jails

cannot discriminate against a particular religion “except to the extent required by the

exigencies of prison administration.” Maddox v. Love, 655 F.3d 709, 719-20 (7th Cir. 2011).

Economic and safety constraints may require that the needs of inmates adhering to one

faith be accommodated differently from those adhering to another, but the treatment of

all inmates must be “qualitatively comparable.” Id.

Here, Plaintiff plausibly alleges that Defendant Cash singled him out based on his

religion and treated him differently than other inmates who performed the same prison

job to the same quality standards. He describes ongoing verbal harassment premised on

his religion, an eventual physical confrontation, and termination from his prison job.

Reading the complaint broadly in his favor, he has plead a plausible claim under the

Fourteenth Amendment premised on his religion. By contrast, he has not successfully

pled an Equal Protection claim related to his race because he has not indicated his race,

nor has he described how his race was a factor in Cash’s actions relative to other inmates.

The Court considered if Plaintiff might have stated a claim under the First

Amendment related to his religious exercise, but ultimately finds that he did not state a

First Amendment claim premised on religion. The Free Exercise Clause of the First

Amendment “prohibits the state from imposing a substantial burden on a central

religious belief or practice.” Kaufman v. Pugh, 733 F.3d 692, 696 (7th Cir. 2013) (internal

quotation marks and citation omitted). Although Plaintiff opted to stop wearing his kufi

to his dietary job to avoid Cash’s ire, he does not actually suggest that Cash’s conduct

somehow burdened his religion, so there is no First Amendment claim.

The Court also considered if Plaintiff had claims for the verbal harassment or the

physical altercation under the Eighth Amendment. Verbal harassment generally does

not rise to the level of a constitutional violation, though some harassment may be serious

enough to constitute cruel and unusual punishment. Beal v. Foster, 803 F.3d 356, 358 (7th

Cir. 2015) (finding that verbal sexual harassment, accompanied by suggestive gestures,

that created a risk both from the harasser and fellow inmates, was sufficient to proceed

beyond initial review); Brand v. Oglesby, 2021 WL 4262447 at *1 (S.D. Ill. 2021) (finding a

claim insufficient where plaintiff alleged that a guard ran into his cell, verbally threatened

him, and indicated he would deploy pepper spray if plaintiff moved). Some threats may

rise to the level of cruel and unusual punishment. Dobbey v. Ill. Dept. of Corr., 574 F.3d

443, 445 (7th Cir. 2009). “The test for what constitutes cruel and unusual punishment is

an objective one. It is not the actual fear of the victim, but what a “reasonable victim”

would fear.” Id.

Verbal harassment that targets a specific vulnerable characteristic of an offender

may rise to the level of an Eighth Amendment violation. See e.g., Lisle v. Welborn, 933 F.3d

705, 719 (7th Cir. 2019) (finding that verbal harassment encouraging a mentally ill inmate

to commit suicide could amount to an Eighth Amendment violation). Hughes v. Scott, 816

F.3d 955, 956-67 (7th Cir. 2016) (finding that calling a mentally vulnerable inmate

“ignorant,” “stupid” and a “moron,” accompanied by threats of retaliation was sufficient

to make out an Eighth Amendment claim).

Here, there is no doubt that Cash’s slew of harassment was inappropriate and

should not be tolerated, but it does not rise to the level of an Eighth Amendment

violation. Cash’s remarks were derogatory, but they did not suggest any form of physical

danger or future ill-will. Though Cash ultimately may have played a role in Plaintiff’s

job loss, Plaintiff does not suggest that Cash foreshadowed this in her campaign of

harassment. At most, he indicates she once threated to give him a ticket, but it does not

appear that this threat came to fruition. Again, the Court would not condone Cash’s

remarks or conduct, but it does not find that the verbal harassment described rose to the

level of an Eighth Amendment violation for verbal harassment.

Likewise, Cash’s physical conduct—pushing or shoving Plaintiff twice in the

supervisor’s office—was entirely unacceptable, but not every push or shove amounts to

excessive force under the Eighth Amendment. The “core requirement” for an excessive

force claim is that the defendant “used force not in a good-faith effort to maintain or

restore discipline, but maliciously and sadistically to cause harm.” Hendrickson v. Cooper,

589 F.3d 887, 890 (7th Cir. 2009) (citation omitted). Several factors guide the inquiry of

whether an officer's use of force was legitimate or malicious, including the need for an

application of force, the amount of force used, and the extent of the injury suffered by the

prisoner. Id. “Not every push or shove, even if it may later seem unnecessary in the

peace of a judge's chambers,” violates the constitution. Graham v. Conner, 490 U.S. 386,

396 (1989) (internal citations omitted).

Here, Plaintiff describes two brief shoves, one which caused him to stumble

backwards because he was caught off guard, but he does not describe any associated

injury whatsoever. While there appears to be no good faith reason for the shoves, there

is no indication that the force was extreme or that it caused an injury. Therefore, the

Court finds that Plaintiff has not stated an Eighth Amendment excessive force claim

against Cash. However, Plaintiff also expressed a desire to proceed against Cash for

common law assault, harassment, and defamation of character. Plaintiff will be allowed

to pursue these state level claims in this lawsuit under an exercise of supplemental

jurisdiction (28 U.S.C. § 1367(c)) for the pendency of this lawsuit. Plaintiff should be

aware that if there comes a time when all federal claims are resolved short of the merits

of the case, then the state law claims may then be dismissed.

Claim 2

Plaintiff faults Defendant Ester for failing to intervene on February 1, 2022, during

the physical confrontation in the supervisor’s office. A failure to intervene claim requires

evidence of the following: (i) the defendant knew of the unconstitutional conduct; (ii) the

defendant had a realistic opportunity to prevent the harm; (iii) the defendant failed to

take reasonable steps to prevent the harm; and (iv) the plaintiff suffered harm as a result.

Yang v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994). As the Court concluded in relation to

Defendant Cash, Plaintiff did not suffer any physical harm from Cash’s shoves, so he

cannot proceed against Defendant Ester for a failure to intervene in Cash’s behavior.

Even if Plaintiff had suffered an injury, Plaintiff’s description of the quickly evolving

events does not tend to suggest Ester had a reasonably opportunity to intervene, but

utterly failed to act. Ester witnessed the two enter the office area engaged in a verbal

exchange (which was common by Plaintiff’s standards), so Ester began to engage Plaintiff

in conversation, presumably to understand what was afoot (and maybe to de-escalate the

situation). Before Ester and Cash even finished speaking, and with no apparent warning,

Cash lunged at Plaintiff and shoved him. As Plaintiff questioned Cash about this, he tried

to navigate around her to engage again with Ester, but Cash grabbed him and pulled or

shoved him a second time. Ester’s initial instinct, to try to engage Plaintiff in conversation

was a reasonable first step. These facts simply do not support a failure to intervene claim

against Ester, and Ester will be dismissed.

Plaintiff also faults Ester for failing to report Cash or to correct Cash’s conduct, but

these theories do not align with a right to recovery under § 1983, so any such claim is

dismissed as insufficient.

Disposition

IT IS HEREBY ORDERED THAT Claims 1 and 3-5 of the Complaint (Doc. 1)

survive against Defendant Lisa F. Cash. By contrast, Claim 2 against Defendant Ester is

insufficient to state a claim. Plaintiff also has not presented facts sufficient to state claims

against Defendants Ren, M. Lively, Lieutenant Frank, or David Mitchess. The Clerk of

Court is DIRECTED to TERMINATE Defendants Ester, Ren, Lively, Frank, and Mitchess

for Plaintiff’s failure to state a claim against these parties.

The Clerk of Court is DIRECTED to prepare for Defendant Lisa F. Cash: (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 (Doc. 1), and this Memorandum and Order to Defendants’ place of

employment as identified by Plaintiff. 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 Defendant, and the

Court will require Defendant to pay the full costs of formal service, to the extent

authorized by the Federal Rules of Civil Procedure.

If a Defendant cannot be found at the work address provided by Plaintiff, the

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

known, the 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. § 1997e(g).

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

stated in this Merits Review Order.

If judgment is rendered against Plaintiff, and the judgment includes the payment

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

regardless of whether his application to proceed in forma pauperis was granted. See 28

U.S.C. § 1915(f)(2)(A).

Plaintiff is ADVISED that he is under a continuing obligation to inform the Clerk

of Court and each opposing party of any address changes; the Court will not

independently investigate his whereabouts. This shall be done in writing and not later

than 14 days after a change of 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 failure to prosecute. FED. R. CIV. P. 41(b).

Plaintiff’s Motion to Add Previous Lawsuits (Doc. 4) is GRANTED. Plaintiff

noticed that the copy of the complaint filed with the Court omitted the backside of some

of his pages, so he has supplemented the missing records at docket entry 4.

IT IS SO ORDERED.

Dated: March 19, 2024 /s David W. Dugan

________________________

DAVID W. DUGAN

United States 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 the complaint. It will

likely take at least 60 days from the date of this Order to receive the defendants’ Answers,

but it is entirely possible that it will take 90 days or more. When all of 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 his time, unless otherwise directed by the Court.

The Court wishes to remind the Plaintiff that litigation is often viewed a series of hurdles

that the Plaintiff must clear to get to another hurdle. Initial screening is such a hurdle, but

it is a very low one for the Plaintiff to clear. As noted above, surviving initial screening

only requires the bare statement of a claim that, if proven, could entitle Plaintiff to some

relief. At trial, he will need to prove by a preponderance of evidence that the facts alleged

actually occurred and that those facts satisfy the legal requirements for recovery. Trial is

the highest and most difficult of hurdles for any Plaintiff to clear.