Lipscomb v. Wills

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

KEON V. LIPSCOMB, #R25793, )

)

Plaintiff, )

vs. ) Case No. 24-cv-01232-SMY

)

ANTHONY WILLS, )

Q. BAKER (Officer, #16083), and )

LANCE KORANDO, )

)

Defendants. )

MEMORANDUM AND ORDER

YANDLE, District Judge:

Plaintiff Keon V. Lipscomb, an inmate of the Illinois Department of Corrections (“IDOC”)

currently incarcerated at Menard Correctional Center, filed the instant lawsuit pursuant to 42

U.S.C. § 1983 for alleged deprivations of his constitutional rights. He claims Defendants housed

him in unsanitary conditions, provided him with a staple and encouraged him to kill himself, failed

to summon help for him, and used excessive force against him. (Doc. 1). He seeks monetary

damages and injunctive relief (Doc. 1, p. 10).

This case is now before the Court for preliminary review of the Complaint under 28 U.S.C.

§ 1915A, which requires the Court to screen prisoner Complaints to filter out nonmeritorious

claims. 28 U.S.C. § 1915A(a). Any portion of the Complaint that is legally frivolous, malicious,

fails to state a claim for relief, or requests money damages from an immune defendant must be

dismissed. 28 U.S.C. § 1915A(b).

The Complaint

Plaintiff makes the following allegations in the Complaint (Doc. 1): Plaintiff is severely

mentally ill and was on crisis watch beginning on February 6, 2024, on the North-2, 5 Gallery at

Menard (Doc. 1, pp. 1-3). His cell was contaminated with feces on the walls and door. The cell

had no cold running water to drink, had not been allowed to shower for three months, could not

obtain a clean smock or blanket, and the cell’s bright lights interfered with his sleep. Plaintiff

repeatedly asked Defendant Korando (the gallery watch officer) to remedy these problems, but

Korando refused to do anything.

Plaintiff’s mental illness causes him to cut himself to relieve pain and stress. He self-

mutilated more than ten times since being placed on crisis watch and was sent to an outside hospital

for treatment on at least five of those occasions. Each time, correctional officers had provided

Plaintiff with items he used to cut himself. They also harassed him and encouraged him to kill

himself. Defendants Korando and Baker told other inmates that Plaintiff was a “baby raper,”

which prompted other prisoners to threaten to kill Plaintiff (Doc. 1, pp. 3, 7).

At around 7:45-8:00 a.m. on March 26, 2024, Defendant Baker (the suicide watch officer)

slid a staple under Plaintiff’s cell door, saying, “Here, just in case you want to kill yourself” (Doc.

1, pp. 3, 7). Hearing that comment, Plaintiff decided that if he couldn’t get any relief from the

deplorable cell conditions, he would kill himself with the staple (Doc. 1, p. 3). At about 9:00 a.m.,

Plaintiff asked Korando and Baker again for the feces to be cleaned off the wall, the lights to be

turned off, a shower, cold water to drink, and a clean smock and blanket. He told them if he

couldn’t get those things, he would kill himself with the staple Baker gave him. Korando and

Baker started laughing. Korando said, “good;” Baker told Plaintiff to make sure he cut left and

right, not up and down. Defendants walked away and Plaintiff began cutting himself, aiming for

an artery/vein (Doc. 1, p. 4).

Over the next two hours, Korando and Baker returned and watched Plaintiff cut himself.

They told him, “that’s not good enough,” and screamed to other inmates, “the baby raper Keon

Lipscomb is trying to kill himself with a staple” and “die baby rapist.” Other inmates repeated

that chant. After about an hour, Plaintiff had cut so deeply that he was cutting into tendons. He

passed out three times from loss of blood.

At around 11:30 a.m., Korando and Baker opened the hatch in Plaintiff’s cell door to cuff

him. Because they were loud and aggressive, Plaintiff held up his hands and said he was not

cutting himself anymore. However, Baker began spraying Plaintiff with mace through the hatch.

Defendants called Plaintiff names and asked how the “spicy spray” felt. Plaintiff tried to cover

the hatch with his blanket, but Defendants pulled it away through the hatch and continued to spray

him until they ran out of mace. When Plaintiff tried to cuff up, Korando sprayed him with another

mace can until it was emptied.1 Korando and Baker then took Plaintiff to the mental health room.

Plaintiff was transported to Chester Hospital, where he received ten stitches to close his

wound. Upon his return, Plaintiff was put in the same cell and housed under the identical

conditions with the same dirty smock and blanket. This continued through the date he wrote the

instant Complaint on May 2, 2024 (Doc. 1, p. 6).

Korando is a defendant in another lawsuit brought by Plaintiff.2 Korando’s conduct was

in retaliation for that case; he made statements that Plaintiff would not get cold water, a clean cell,

or a shower because Plaintiff filed a lawsuit against him (Doc. 1, pp. 1, 7, 11). Korando said he

would treat Plaintiff worse every time Plaintiff sued him, “until we have to kill you;” “Dismiss me

from your case and we’ll let you live.” (Doc. 1, p. 7).

Plaintiff names Menard Warden Wills as a defendant on the grounds that he is responsible

1 Plaintiff notes that prison rules direct officers to use only a one-second burst of mace/OC spray on

individuals in custody, then stop and allow the individual to comply. If officers repeat the one-second burst

a second or third time without success, they are to contact their superior. Defendants did not follow these

policies and instead sprayed Plaintiff with two full cans of mace (Doc. 1, p. 6).

2 Lipscomb v. Crane, et al., Case No. 23-cv-2800-NJR (S.D. Ill filed Aug. 15, 2023). Korando received

notice of the lawsuit on January 4, 2024 (Doc. 32 in Case No. 23-2800).

for Plaintiff’s safety and Plaintiff had written to Wills about Korando’s harassment, but Plaintiff

has remained on the gallery overseen by Korando (Doc. 1, p. 2). Plaintiff sues Korando and Baker

in their individual and official capacities and sues Wills in his official capacity only.3

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

this pro se action:

Count 1: Eighth Amendment excessive force claim, and Fourteenth

Amendment due process claim, against Baker and Korando for

spraying Plaintiff with chemical agents on March 26, 2024, when

Plaintiff was not harming himself or others and presented no threat.

Count 2: Eighth Amendment deliberate indifference/failure to protect claim

against Baker and Korando for providing Plaintiff with a staple on

March 26, 2024, encouraging Plaintiff to kill himself, observing

Plaintiff cutting himself and bleeding for two hours, and failing to

intervene to stop Plaintiff from harming himself.

Count 3: Eighth Amendment cruel and unusual punishment claim against

Baker and Korando for housing Plaintiff in a cell contaminated with

feces and lacking cold drinking water; refusing him access to a

shower; and refusing to provide him with clean clothing or a clean

blanket, between February 2, 2024 and May 2, 2024.

Count 4: Eighth Amendment claim against Baker and Korando for

endangering Plaintiff’s physical safety by telling other inmates that

Plaintiff raped and killed a baby.

Count 5: First Amendment claim against Korando, for housing Plaintiff in

unsanitary conditions, using excessive force against him,

encouraging him to kill himself, and telling other inmates about

Plaintiff’s conviction, in retaliation for Plaintiff’s previous lawsuit

against Korando.

Count 6: State law assault/battery claim against Baker and Korando for

allowing Plaintiff to injure himself and then spraying him with a

chemical agent.

Count 7: State law claim for intentional infliction of emotional distress

3 Plaintiff requests Defendants to preserve the camera footage from North-2, 5 Gallery on March 26, 2024 between

9:00 a.m. and 11:30 a.m., as well as the footage from the camera outside of 5 gallery on that date and time, as the

footage depicts the events he describes (Doc. 1, pp. 2, 11).

against Baker and Korando for housing Plaintiff in an unsanitary

cell, providing Plaintiff with the staple and encouraging him to kill

himself, spraying him with excessive amounts of chemical agents,

and telling other inmates about his conviction.

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. 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 that is

plausible on its face.”).

Discussion

Count 1

“Correctional officers violate the Eighth Amendment when they use force not in a good

faith effort to maintain or restore discipline, but maliciously and sadistically for the very purpose

of causing harm.” Wilborn v. Ealey, 881 F.3d 998, 1006 (7th Cir. 2018); see also Wilkins v. Gaddy,

559 U.S. 34 (2010). Plaintiff’s allegations that he was not resisting Baker’s and Korando’s efforts

to handcuff him and presented no threat to them, to himself, or to others – yet they sprayed him

with two entire cans of pepper spray or mace, states a viable claim in Count 1 for excessive force

against these defendants.

Plaintiff also invokes the Fourteenth Amendment’s Due Process Clause relative to these

defendants’ use of the chemical spray. He claims they violated prison policy when they emptied

two cans of pepper spray/mace on him, instead of spraying the substance in one-second bursts

(Doc. 1, p. 8). However, a failure to follow prison rules does not amount to a constitutional

violation, and the federal court does not enforce state law or regulations. Archie v. City of Racine,

847 F.2d 1211, 1217 (7th Cir. 1988) (en banc), cert. denied, 489 U.S. 1065 (1989); Pasiewicz v.

Lake Cnty. Forest Preserve Dist., 270 F.3d 520, 526 (7th Cir. 2001). Accordingly, the Fourteenth

Amendment portion of Count 1 is dismissed without prejudice.

Count 2

Prison officials’ deliberate indifference to a prisoner’s serious medical or mental health

needs violates the Eighth Amendment’s prohibition against cruel and unusual punishment. Rasho

v. Elyea, 856 F.3d 469, 475 (7th Cir. 2017). To state such a claim, a prisoner must plead facts and

allegations suggesting that (1) he suffered from an objectively serious medical or mental health

condition, and (2) the defendant acted with deliberate indifference to his medical needs. Id.

Suicide is objectively serious. An official is deliberately indifferent to the risk of suicide when the

official is “aware of the significant likelihood that an inmate may imminently seek to take his own

life” yet “fail[s] to take reasonable steps to prevent the inmate from performing the act.” Pittman

ex rel. Hamilton v. County of Madis on, Ill., 746 F.3d 766, 775-76 (7th Cir. 2014) (quoting

Collins v. Seeman, 462 F.3d 757, 761 (7th Cir. 2006)).

At the time in question, Plaintiff was allegedly on crisis watch and had harmed himself

repeatedly over the previous weeks. He alleges that he told Baker and Korando he planned to take

his own life using the staple Baker gave him and they took no steps to stop or deter Plaintiff after

he told them he would kill himself. He also alleges that they encouraged him to take his life and

watched him cut his arm and bleed for two hours while they taunted him, without intervening.

These allegations state a claim in Count 2 for deliberate indifference/failure to protect against

Baker and Korando.

Count 3

Prison conditions that deprive inmates of basic human needs – food, medical care,

sanitation, or physical safety – may violate the Eighth Amendment. Rhodes v. Chapman, 452 U.S.

337, 346-47 (1981). A cell contaminated with human waste can present an excessive risk to the

inmate’s health and deprive him of the basic human need for sanitation. Id.; see also Budd v.

Motley, 711 F.3d 840, 842 (7th Cir. 2013). Here, in addition to Plaintiff’s claim that the cell walls

were covered with feces, he allegedly was not allowed to shower for three months and was not

provided with clean clothing or bedding. Further, lack of access to sufficient drinking water may

subject a prisoner to serious health risks. The Complaint satisfies the objective component of a

claim for unconstitutional conditions.

As for the subjective component, Plaintiff alleges that Korando and Baker were well aware

of the cell conditions, as he repeatedly asked them to have the cell cleaned, requested a shower,

and sought clean clothes and a blanket – all of which the defendants refused. Based on these

allegations, Count 3 will proceed against Baker and Korando.

Count 4

“[P]rison officials have a duty . . . to protect prisoners from violence at the hands of other

prisoners.” Farmer v. Brennan, 511 U.S. 825, 833 (1994) (internal citations omitted); see also

Pinkston v. Madry, 440 F.3d 879, 889 (7th Cir. 2006). To state a claim for failure to protect, a

plaintiff must plead facts suggesting he is incarcerated under conditions posing a substantial risk

of serious harm, and that the defendants acted with “deliberate indifference” to that danger. Id.;

Pinkston, 440 F.3d at 889. Here, Plaintiff alleges that defendants created the danger of future

bodily harm by telling other inmates that he raped and killed a baby and that his life has been

threatened as a result. The Eighth Amendment claim in Count 4 may also proceed against Baker

and Korando.

Count 5

Prison officials may not retaliate against inmates for filing grievances, lawsuits, or

otherwise complaining about their conditions of confinement. See, e.g., Gomez v. Randle, 680 F.3d

859, 866 (7th Cir. 2012); Walker v. Thompson, 288 F.3d 1005 (7th Cir. 2002). “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). In this case, Plaintiff alleges that Korando told him that because he filed a lawsuit against

him, Korando would not correct the cell conditions and would continue his harmful treatment until

he killed Plaintiff. As such, the Complaint states a colorable retaliation claim against Korando in

Count 5 for the mistreatment (detailed in Count 3) as well as the conduct by him alleged in Counts

1, 2, and 4.

Count 6

Plaintiff’s state law tort claim for assault and battery is based in part on the same facts that

support the excessive force claim in Count 1 – the deployment of a chemical agent. Wisconsin v.

Ho-Chunk Nation, 512 F.3d 921, 936 (7th Cir. 2008) (federal court has supplemental jurisdiction

over related state law claims that “derive from a common nucleus of operative fact”). See e.g. Shea

v. Winnebago Cty. Sheriff’s Dep’t, 746 F. App’x 541, 547-48 (7th Cir. 2018) (discussing assault

and battery under Illinois law). However, defendants’ passive observation of Plaintiff while

Plaintiff cut himself does not constitute an assault or a battery. See Shea, 746 F. App’x at 548.

Count 6 may proceed against Baker and Korando only for the conduct of spraying Plaintiff with

mace/OC spray. That portion of Count 6 based on defendants allowing Plaintiff to self-harm is

dismissed without prejudice.

Count 7

Under Illinois law, a plaintiff claiming intentional infliction of emotional distress must

demonstrate that the defendant(s) intentionally or recklessly engaged in “extreme and outrageous

conduct” that resulted in severe emotional distress. Somberger v. City of Knoxville, Ill., 434 F.3d

1006, 1030 (7th Cir. 2006); see Lopez v. City of Chi., 464 F.3d 711, 720 (7th Cir. 2006). The tort

has three components: (1) the conduct involved must be truly extreme and outrageous; (2) the actor

must either intend that his conduct inflict severe emotional distress, or know that there is at least a

high probability that his conduct will cause severe emotional distress; and (3) the conduct must in

fact cause severe emotional distress. McGrath v. Fahey, 533 N.E.2d 806, 809 (Ill. 1988).

Plaintiff’s allegations satisfy this pleading standard. Therefore, Count 7 will proceed against Baker

and Korando.

Official Capacity Claims/Injunctive Relief

Plaintiff raises claims against Defendants Baker and Korando in their individual and

official capacities. However, claims for monetary damages may only be pursued against state

officials in their individual capacities. Brown v. Budz, 904 F.3d 904, 918 (7th Cir. 2005); Shockley

v. Jones, 823 F.2d 1068, 1070 (7th Cir. 1987). Accordingly, the official capacity claims against

Baker and Korando are dismissed without prejudice.

Plaintiff sues Warden Wills only in his official capacity; he does not allege that Wills had

any personal involvement in the events described in Counts 1-7. However, the doctrine of

respondeat superior (supervisory liability) does not apply to § 1983 actions. Instead, to state an

actionable claim, a supervisory defendant must be alleged to be personally responsible for the

constitutional violation. See Chavez v. Ill. State Police, 251 F.3d 612, 651 (7th Cir. 2001).

Plaintiff’s Complaint does not state a viable claim for damages against Wills. However,

Wills is the proper party to implement any injunctive relief that may be ordered in connection with

Plaintiff’s claims. See Gonzales v. Feinerman, 663 F.3d 311, 315 (7th Cir. 2011) (holding warden

is proper defendant for injunctive relief claim as he would be responsible for ensuring that any

injunctive relief would be carried out). Therefore, Wills will remain as a defendant in his official

capacity only.

Preservation of Video Evidence

The Complaint requests the Court to order the production and preservation of the video

camera footage on March 26, 2024 of Menard’s North-2, 5 Gallery and from the camera on the

outside of 5 Gallery, from the hours of 9:00 a.m. through 11:30 a.m. (Doc. 1, pp. 2, 10). “The duty

to preserve evidence relevant to litigation is well recognized.” In re Pradaxa (Dabigatran

Etexilate) Prod. Liab. Litig., No. 12-md-02385-DRH-SCW, 2013 WL 5377164, at *5 (S.D. Ill.

Sept. 25, 2013). A party has a duty to preserve evidence when he knows, or should have known,

that litigation is imminent. Trask-Morton v. Motel 6 Operating L.P., 534 F.3d 672, 681 (7th Cir.

2008). This duty attaches when the defendant is put on notice of impending litigation. Motel 6,

534 F.3d at 681; Langley by Langley v. Union Elec. Co. 107 F. 3d 510, 514 (7th Cir. 1997) (“From

the initiation of the suit, appellant has been obliged to preserve evidence”). Upon service of the

Complaint, which includes the request for evidence preservation, Defendants will be on notice of

the litigation and will have the duty to preserve information relevant to Plaintiff’s claims.

Accordingly, the request is DENIED as MOOT.

Disposition

The Complaint states colorable claims in Counts 1-7, as limited above, against Baker and

Korando.

The Clerk shall prepare for Q. Baker (#16083), Lance Korando, and Menard Warden

Anthony Wills (official capacity only): (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 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 the Defendant,

and the Court will require the 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 and 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 and Local Rule 8.2, Defendants need only respond to the issues

stated in this Merit Review Order.

Plaintiff is ADVISED that if judgment is rendered against him and the judgment includes

the payment of costs under 28 U.S.C. §1915, he will be required to pay the full amount of the

costs, even though his application to proceed in forma pauperis was granted. See 28 U.S.C.

§ 1915(f)(2)(A).

Plaintiff is further 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 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).

Finally, based on the allegations in the Complaint, the Clerk of Court is DIRECTED to

ENTER the standard qualified protective order pursuant to the Health Insurance Portability and

Accountability Act.

IT IS SO ORDERED.

DATED: August 12, 2024

s/ Staci M. Yandle_____

STACI M. YANDLE

United States District Judge

Notice to Plaintiff

The Court will take the necessary steps to notify the Defendants of your lawsuit and serve

them with a copy of your Complaint. After service has been achieved, Defendants will enter an

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 Defendants have filed their 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 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.