McCloud v. Doe 1

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

PETER J. MCCLOUD,

□ 24-2643-SMY

Plaintiff,

v. Case No. 24-cv-1802-NJR

ANTHONY WILLS, MAJOR ROWAN,

LT. ROYSTER, C/O KIEFER, SANDY

WALKER, ANTHONY JONES,

JOSHUA SHOENBECK, ANGIE

CRAINE, JOHN DOE #1, JOHN DOE

#2, and MARGARET MADOLE,

Defendants.

MEMORANDUM AND ORDER

ROSENTENGEL, Chief Judge:

Plaintiff Peter J. McCloud, an inmate of the Illinois Department of Corrections who

is currently incarcerated at Menard Correctional Center, brings this action for

deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. In the Complaint,

McCloud alleges that he was subjected to unconstitutional conditions of confinement,

denied pain medication, and served food with bugs in it.

This case is now before the Court for preliminary review of the 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).

The Complaint

On May 24, 2023, McCloud arrived at Menard and was placed in a cell in North 2

(Doc. 1, p. 8). The cell lacked bed sheets and the mattress had feces on it. The water in the

cell did not work. There was feces and blood on the wall. He was also denied access to

his property. He remained in the cell for months. He asked the gallery officer,

Correctional Officer Kiefer, for cleaning supplies, bed sheets, and his property (Id.). The

officer also saw the state of his cell every time he picked up meal trays, but Kiefer just

laughed and said, “welcome to Menard” (Id.). He also asked Major Rowan and

Lieutenant Royster to move him to another cell, but they ignored his requests (Id.).

In July 2023, McCloud asked to see mental health staff because the inmate in the

neighboring cell killed himself due to the poor conditions in the cell (Doc. 1, p. 9).

McCloud also began to complain of back pain because medical director Angie Craine

took McCloud off of his pain medications (Id.). He alleges that Craine denied his request

to see a nurse practitioner for months (Id at p. 15).

McCloud was also denied access to recreation, which he alleges was part of his

therapy for his back (Id.). No one in the unit was allowed recreation through August 2023

(Id.). The inmates were on lockdown 24 hours a day. McCloud alleges this was on orders

of Anthony Wills (Id. at pp. 9, 12). As a result, McCloud alleges that his mental health

suffered, and he had increased pain from not being able to move around (Id.).

On September 26, 2023, Correctional Officer Kiefer came to McCloud’s cell and

said that he could go to yard due to all of the inmates’ crying (Id. at pp. 9-10). McCloud

complied with the strip search and was heading out to the yard when the officer at the

door stopped McCloud. The officer noted that McCloud’s hair was braided, and he could

not attend yard with braids (Id.). McCloud noted that his hair was in “locks” and they

could not come out. The officer directed Kiefer to take McCloud back to his cell (Id. at

p. 10). On the way back to the cell, Kiefer made sexually harassing comments. McCloud

asked to speak to a lieutenant, and Kiefer punched McCloud in the back of the head and

maced him (Id.). McCloud alleges that Anthony Wills and Margaret Madole with the

Administrative Review Board (“ARB”) allow officers to use mace for even small

infractions (Id. at p. 13).

McCloud went on suicide watch after the incident due to his deteriorating mental

health (Doc. 1, p. 10). He also filed a complaint pursuant to the Prison Rape Elimination

Act (“PREA”). Kiefer continued to sexually harass McCloud. Kiefer also wrote a

disciplinary report against McCloud, alleging that McCloud assaulted him (Id.). McCloud

asked staff for a shower to wash off the mace and for pain medication, but his requests

were denied (Id.). A mental health professional finally prescribed him pain medication.

After two weeks, McCloud come off of suicide watch in order to shower (Id.). Although

he requested a shower while on watch, officers told him that Warden Wills does not allow

showers or property while on suicide watch (Id.).

McCloud filed grievances and wrote to the ARB about his situation. He also

submitted his written statement that he planned to give before the adjustment committee

on his ticket (Id. at pp. 10-11). He gave adjustment committee members Sandy Walker,

Anthony Jones, and Joshua Shoenbeck his statement and told them to check the cameras

because the video would support his statement (Id. at p. 11). He also presented the

committee with witnesses (Id.). But Shoenbeck just laughed and said, “you don’t win in

Menard” (Id.). McCloud was found guilty of the charges and sentenced to 45 days in

segregation (Id.). The committee members did not read McCloud’s statement, nor did

they call his witnesses.

The day after his hearing, Food Supervisors John Doe #1 and John Doe #2 served

the inmates on the gallery food with insects and roaches (Id. at p. 11). All of the inmates,

including McCloud, received the tainted food. Although the inmates informed the

lieutenant about the issues with the food, he just laughed and made jokes about the food

(Id.). The inmates asked for medical care or a mental health crisis team, but they were

refused care.

Preliminary Dismissals

As an initial matter, McCloud fails to state a claim against Margaret Madole.

Although he alleges that he wrote grievances and letters to the ARB, Madole cannot be

liable for simply failing to remedy his issues through the grievance process. The simple

denial or mishandling of a grievance does not state a claim. Owens v. Hinsley, 635 F.3d

950, 953 (7th Cir. 2011); Grieveson v. Anderson, 538 F.3d 763, 772 n.3 (7th Cir. 2008). Nor

are there any allegations suggesting that she was aware of the conditions that McCloud

faced at Menard. McCloud also alleges that Wills allowed the officers to use mace and

that he was denied a shower by officers per Warden Wills (Id. at pp. 10, 13). But Wills

cannot be liable simply in his position as warden because the doctrine of respondeat

superior (supervisory liability) does not apply to actions filed under Section 1983. See

Kinslow v. Pullara, 538 F.3d 687, 692 (7th Cir. 2008). Warden Wills has to be personally

involved in the actions at issue. Although “deliberate indifference may be found where

an official knows about unconstitutional conduct and facilitates, approves, condones, or

turns a blind eye to it,” McCloud only alleges in conclusory fashion that Wills allowed

the officers to use mace and deny showers. Perez v. Fenoglio, 792 F.3d 768, 781 (7th Cir.

2015) (quotations omitted). Nothing in the Complaint suggests that Wills approved of the

conduct or turned a blind eye to it.

McCloud also includes various potential claims that he fails to attach to a specific

defendant. He alleges that he requested showers while on suicide watch, but his requests

were denied by correctional officers (Doc. 1, p. 10). He also alleges that he complained to

officers and a lieutenant about the tainted food, but they denied his requests for medical

care. But McCloud fails to identify these officers by name or John Doe designation.

Although McCloud may certainly allege claims against identified John/Jane Does (i.e.,

John Doe #1, John Doe #2), he refers only to officers, staff, and lieutenant. These claims

are too generic to survive threshold review. Further, he fails to identify the lieutenant in

the case caption. Myles v. United States, 416 F.3d 551, 551-52 (7th Cir. 2005) (to be properly

considered a party a defendant must be “specif[ied] in the caption”). Thus, McCloud’s

claims regarding his requests for showers and his requests for care in response to the

tainted food are DISMISSED without prejudice.

Discussion

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

counts:

Count 1: Eighth Amendment conditions of confinement claim

against Correctional Officer Kiefer, Major Rowan, and

Lieutenant Royster for housing McCloud in an unsanitary

cell.

Count 2: Eighth Amendment deliberate indifference claim against

Angie Craine for denying McCloud’s pain medication and

refusing his request to see a nurse practitioner.

Count 3: Eighth Amendment conditions of confinement claim

against Anthony Wills for denying McCloud access to the

recreational yard for four months.

Count 4: Eighth Amendment excessive force claim against

Correctional Officer Kiefer for punching, macing, and

sexually harassing McCloud on September 26, 2023.

Count 5: Fourteenth Amendment due process claim against Sandy

Walker, Anthony Jones, and Joshua Shoenbeck for denying

McCloud’s statement and request for witnesses.

Count 6: Eighth Amendment conditions of confinement claim

against Food Supervisors John Doe #1 and John Doe #2 for

serving McCloud food with insects.

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.1

At this stage, McCloud states a viable conditions of confinement claim against

Correction Officer Kiefer, Major Rowan, and Lieutenant Royster in Count 1 and against

1 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”).

Anthony Wills in Count 3. He alleges that none of the officers in North 2 would provide

him with supplies to clean his cell or transfer him to another cell. Further, he alleges that

Anthony Wills issued a lockdown for North 2 which prevented the inmates from all

recreational activity for several months. That is enough at this stage to state a claim in

Counts 1 and 3.

McCloud also adequately states a claim against Kiefer in Count 4 for excessive

force. Washington v. Hively, 695 F.3d 641, 642-643 (7th Cir. 2012); DeWalt v. Carter, 224 F.3d

607, 619 (7th Cir. 2000).

McCloud fails, however, to state a claim for due process violations. He alleges that

the adjustment committee denied his request to read a statement and call witnesses. He

also asked them to review the video footage of the incident. Although the committee

members’ actions could amount to a due process violation, an inmate’s liberty interests

are protected by the Due Process Clause only insofar as a deprivation of the interest at

issue would impose an “atypical and significant hardship on the inmate in relation to the

ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995). A short stay

in segregation, by itself, does not typically amount to an atypical and significant

hardship. Sandin v. Conner, 515 U.S. 472, 484 (1995); Thomas v. Ramos, 130 F.3d 754, 761-62

(7th Cir. 1997) (two months not enough on its own); Williams v. Brown, 849 F. App’x 154,

157 (7th Cir. 2021) (noting that 30 days is not enough); Beamon v. Pollard, 711 F. App’x 794,

795 (7th Cir. 2018) (135 days in segregation, absent any atypical and significant

conditions, “does not violate the Fourteenth Amendment”); Lekas v. Briley, 405 F.3d 602,

612 (7th Cir. 2005) (90 days in segregation did not state a claim). McCloud only spent

45 days in segregation, and he fails to describe any of the conditions that he faced while

in segregation. He fails to offer any allegations suggesting that he faced atypical and

significant conditions that would amount to a liberty interest. Thus, McCloud fails to state

a due process claim. His claim in Count 5 against Sandy Walker, Anthony Jones, and

Joshua Shoenbeck is DISMISSED without prejudice.

Severance of Counts 2 and 6

McCloud’s claim of medical deliberate indifference against Angie Craine in Count

2 and his claim against the food supervisors in Count 6 are unrelated to the claims

regarding the conditions of his cell and use of force by Correctional Officer Kiefer.

Accordingly, consistent with George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007), and Federal

Rules of Civil Procedure 18 and 20, the Court will sever Count 2 and Count 6 into separate

cases.

Motion for Class Action Certification

McCloud seeks to bring his lawsuit on behalf of all inmates at Menard who have

faced unconstitutional conditions of confinement, denial of medical care, and repeated

use of force with mace (Doc. 13). To be certified as a class, McCloud must first satisfy the

four elements in Federal Rule of Civil Procedure 23(a): numerosity, commonality,

typicality, and adequacy of representation. See Messner v. Northshore Univ. HealthSystem,

669 F.3d 802, 811 (7th Cir. 2012). Then, the case must fall under one of the conditions

specified in Rule 23(b). See FED. R. CIV. P. 23(a), (b); Lacy v. Cook Cnty., 897 F.3d 847, 864

(7th Cir. 2018). Here, McCloud includes claims that are only specific to him. He alleges

that Kiefer used excessive force on him, that Angie Craine denied him medical care, and

that he was denied due process protections. Thus, these claims are not suitable for a class

action. See Oshana v. Coca-Cola Co., 472 F.3d 506, 514 (7th Cir. 2006) (representative's

claims must have the “same essential characteristics as the claims of the class at large”).

McCloud also cannot satisfy the element of adequacy of representation because as a

nonlawyer, he cannot represent the other potential members of the class. See Howard v.

Pollard, 814 F.3d 476, 478 (7th Cir. 2015) (“[I]t is generally not an abuse of discretion for a

district court to deny a motion for class certification on the ground that a pro se litigant

is not an adequate class representative.”) (emphasis omitted). McCloud acknowledges

that he cannot represent the potential members but asks that counsel be assigned to

represent the proposed class action. But there is no right to the appointment of counsel

in civil matters. Romanelli v. Suliene, 615 F.3d 847, 851 (7th Cir. 2010). And the Court finds

that McCloud is capable of representing himself on his own, individual claims at this

stage. Thus, his request for class certification (Doc. 13) is DENIED.

Motion for Counsel

As to his motion for counsel (Doc. 20), McCloud notes that he has contacted several

law firms who declined to take his case. As to his ability to represent himself, he notes

that the claims are complex and will need extensive discovery. But given the early stage

of the litigation, it is difficult to accurately evaluate the need for the assistance of counsel.

See Kadamovas v. Stevens, 706 F.3d 843, 845 (7th Cir. 2013) (“[U]ntil the defendants respond

to the complaint, the plaintiff's need for assistance of counsel ... cannot be gauged.”).?

Defendants have not yet been served nor has an Answer been filed. Once all defendants

have filed Answers, the Court will enter a scheduling order with initial discovery

deadlines, including deadlines related to the issue of whether McCloud exhausted his

administrative issues. The Court finds that this is a straight-forward issue which

McCloud should be able to handle on his own. But if he experiences difficulties after the

scheduling order is entered, he may renew his request for counsel at that time. For now,

his request for counsel (Doc. 20) is DENIED.

Disposition

For the reasons stated above, Count 3 against Angie Craine and Count 6 against

John Doe #1 and John Doe #2 are SEVERED into two separate cases. In each new case,

the Clerk is DIRECTED to file the following documents:

e This Memorandum and Order; and

e The Complaint (Doc 1).

As to the remaining claims, Count 1 shall proceed against Correctional Officer

Kiefer, Major Rowan, and Lieutenant Royster. Count 3 shall proceed against Anthony

Wills. Count 4 shall proceed against Kiefer. Count 5 against Sandy Walker, Anthony

Jones, and Joshua Shoenbeck as well as any claim against Margaret Madole are

2 In evaluating the motion for counsel, the Court applies the factors discussed in Pruitt v. Mote,

203 F.3d 647, 654 (7th Cir. 2007), and related authority.

10

DISMISSED without prejudice. McCloud’s motion for status of the case (Doc. 15) is

DENIED.

The Clerk of Court shall prepare for Defendants Correctional Officer Kiefer, Major

Rowan, Anthony Wills, and Lieutenant Royster: (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

McCloud. 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 McCloud,

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 McCloud, 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, McCloud 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: December 17, 2024 Tl

AM osnttg

NANCY J. ROSENSTENGEL

Chief U.S. District Judge

12

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.