Ross v. Gossett

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

DEMETRIUS ROSS, et al., on behalf of )

themselves and all others similarly situated, )

)

Plaintiffs, )

) Case No. 15-cv-309-SMY

vs. )

)

GREG GOSSETT, et al., )

)

Defendants. )

MEMORANDUM AND ORDER

YANDLE, District Judge:

Plaintiffs Demetrius Ross, Kevin L. Hamilton, Ronald Smith, Jonathan Tolliver, and

Glenn Verser, current and former inmates of the Illinois Department of Corrections (“IDOC”),

bring this class action on behalf of themselves and all others similarly situated for violations of

their constitutional rights as alleged in the Second Amended Complaint. Plaintiffs’ claims

concern the constitutionality of facility-wide shakedowns that occurred at Illinois River, Big

Muddy River, Lawrence, and Menard correctional centers during the period April 2014 through

July 2014.

Plaintiffs assert the following causes of action in the Second Amended Complaint:

Count I: Eighth Amendment cruel and unusual punishment claim under 42

U.S.C. § 1983 alleging that the Defendants designed and

implemented a plan to conduct abusive and humiliating

shakedowns that did not further any legitimate penological

purpose;

Count II: Eighth Amendment conspiracy claim under 42 U.S.C. § 1983

alleging Defendants reached an agreement to violate class

members’ constitutional rights;

Count III: Eighth Amendment failure to intervene claim under 42 U.S.C. §

1983;

Count IV: Prison Rape Elimination Act under 42 U.S.C. § 19831.; and

Count V: State law tort claim for intentional infliction of emotional distress.

The Court previously certified a class of approximately 10,000 prisoners housed at the four

prisons on three claims against 22 supervisory Defendants.2 The class was not certified as to the

400+ non-supervisory Defendants named in the Second Amendment Complaint.

This matter is now before the Court for consideration of Defendants’ motion seeking

summary judgment on Counts I, II, III and V (Doc. 642), which Plaintiffs oppose (Doc. 671).

For the following reasons, the Motion is GRANTED in part and DENIED and part.

Factual Background

Construed in the light most favorable to Plaintiffs, the evidence and reasonable inferences

establish the following facts relevant to the pending summary judgment motion:

IDOC’s Search Policies

The Illinois Department of Corrections (“IDOC” or “Department”) prison staff search

inmates’ cells at IDOC facilities regularly to ensure that inmates cannot hide contraband.

Contraband includes any unlawful substance in an inmate’s cell, including drugs, weapons,

metal, any item that belongs to another inmate, and any item that has been altered from its

original state (Doc. 642-6, p. 97). These searches are commonly referred to as “shakedowns”

(Doc. 481-8, pp. 51-52; Doc. 642-2). Facility-wide searches go beyond these routine searches,

1 The Court dismissed this Count with prejudice on January 28, 2016 (Doc. 76).

2 The supervisory defendants are Salvador Godinez (Director); Joseph Yurkovich (Chief of Operations); Michael

Atchison (Deputy Chief of Operations); David White (Statewide Tact Commander); Anthony McAllister (Southern

Regional Tact Commander); Jerry Witthoft (Menard Tact Commander); Frank Eovaldi (Menard Assistant Tact

Commander); Robert Arnett (Illinois River Tact Commander); Brian Piper (Illinois River Assistant Tact

Commander); David Hermetz (Big Muddy Tact Commander); Chris White (Big Muddy Assistant Tact

Commander); Ken Finney (Big Muddy Assistant Tact Commander); Michael Gilreath (Lawrence Tact

Commander); Timothy McAllister (Lawrence Assistant Tact Commander); Kim Butler (Menard Warden); Alex

Jones (Menard Assistant Warden); Greg Gossett (Illinois River Warden); Stephanie Dorethy (Illinois River Assistant

Warden); Zachary Roeckeman (Big Muddy Warden); Robert Craig (Big Muddy Assistant Warden); Stephen

Duncan (Lawrence Warden); and Richard Moore (Lawrence Assistant Warden).

as they are “statewide” operations that require the use of tact team members from multiple

prisons to execute them. Facility-wide searches require approval from and supervision by senior

members of the IDOC administration (Doc. 481-6, pp. 33, 46). Facility-wide searches are

achieved primarily by detaining inmates in a holding area while Department staff search the

facilities on a cell-by-cell basis (Doc. 642-8, p. 272; Doc. 642-9, p. 231).

Facility-wide searches are generally handled by an IDOC unit known as the “tact team”

(or tactical team) (Doc. 642-6, pp. 38, 45-48; Doc. 642-5, pp. 35-36; Doc. 642-2, p. 44). Tact

team members are responsible for handling particularly complex situations within the

Department, including riots, escapes, and forcible cell extractions (Doc. 642-6, p. 38; Doc. 642-

11, pp. 35-36; Doc. 642-2, pp. 43-45).

IDOC has developed and communicated policies and procedures to guide searches at

IDOC facilities, including facility-wide searches (Doc. 642-12, pp. 18-19; 27-30). The

Department’s policy regarding cell searches includes a visual sweep, followed by a close

inspection of the cell fixtures, including plumbing, walls, ceiling, floor, windows, shelving,

desks, drawers, and hot air registers, ventilation grills, and radiators (Doc. 642-7, pp. 92-94).

The policy regarding cell searches also requires an in-depth search of all inmate property within

the cell, including all clothing, toiletries, mattresses and bedding, books, and electronics. Id.

Department policy requires each tactical team member to complete a “shakedown slip” for any

cell he or she searches (Doc. 642-22, p. 89; Doc. 642-9, p. 169). The manual for tact teams

requires tact teams to conduct strip searches from inmates’ head to their legs. It also requires

moving inmates in pairs and handcuffed behind the back (Doc. 642-10).

The Administrative Defendants

Defendant Salvador Godinez was the IDOC Director in 2014 (Doc. 642-44, pp. 17-24).

Defendant Joseph Yurkovich was IDOC’s chief of operations in 2014, with operational

responsibilities over the entire prison system (Doc. 642-2, pp. 34-35, 58-59). Defendant Michael

Atchison was IDOC’s Deputy Chief of Operations in 2014 (Doc. 642-22, p. 45). Atchison

supervised deputy directors of the three Department regions, each of which contained eight to ten

facilities; he also supervised ancillary Department units that were operational in nature. Id.

38:17-22. The facility-wide searches at issue were under Atchison’s supervision “at a high

level.” Id. 49:9-23. Defendant David White was IDOC’s statewide tact commander (Doc. 642-5,

p. 24). White assisted in overseeing IDOC’s training academy and oversaw the statewide

firearms and tactical operations. Id. 29:11-17. White supervised at least 50 facility-wide searches

as the statewide tactical commander. Id. 35:20-36:1. Defendant Anthony McAllister was IDOC’s

tactical commander for the southern region in 2014, responsible for planning statewide tactical

operations (Doc. 642-9, pp. 7, 37, 54).

2014 Facility-Wide Searches

Sometime in 2014, Yurkovich and Atchison decided to perform facility-wide searches at

IDOC facilities as part of a “spring cleaning” initiative to remove trash, contraband, and to

gather intelligence from facilities (Doc. 481-16, pp. 93-95; Doc. 481-69, p. 2). Yurkovich and

Atchison had several conversations regarding conducting facility-wide searches (Doc. 481-6, pp.

42-47). Yurkovich could not recall if the operation was in response to increased staff assaults,

increased contraband, gang activity, or any risks to the safety and security of the facilities (Doc.

481-16, pp. 103-104; Doc. 671-1, p. 14). Yurkovich and Atchison initiated the searches because

the prisons “hadn’t been searched on a facility-wide scale in a long time” (Doc. 481-6, p. 46;

Doc. 481-16, pp. 103-104).

In March 2014, Yurkovich emailed Eddie Caumiant, the state union president for the

majority of IDOC correctional staff, informing him that multiple facilities statewide would be

locked down (Doc. 671-3). Caumiant replied positively, as staff union members “want to see a

facility wide lock and shakedown. They are getting very worried that the place is losing control,

and are starting to whisper ‘no confidence’ among other things.” Id.

Yurkovich and Atchison decided to use IDOC tactical teams to execute the shakedowns

(Doc. 481-6, pp. 47-49; Doc. 481-71, pp. 2-3). Tact team members are supervised by a facility

tact commander and one or more assistant commanders at the prison where they work, followed

by the Regional Tact Commander (McAllister) and the Statewide Tact Commander (White)

(Doc. 481-8, p. 18; Doc. 481-16, pp. 67-69; Doc. 481-17, pp. 83-84). All tact command staff

answered to the IDOC Deputy Chief of Operations (Atchison) and the Chief of Operations

(Yurkovich), who in turn answer to the IDOC Director (Godinez) (Doc. 481-17, p. 83; Doc. 481-

16, p. 136). White drafted operations orders working with regional tactical commanders (Doc.

642-5, pp. 74-75, 82, 120). IDOC statewide and regional tactical commanders worked with

facility wardens to draft operations orders for the searches (Doc. 642-2, pp. 106-107). Draft

orders for each of the four facilities were reviewed by the IDOC’s operations deputy director and

deputy chief, then approved by Yurkovich. Id.

After their initial conversations about the searches, Yurkovich and Atchison had a series

of “very in-depth conversations” between them, White, and the wardens of the facilities they

planned to search (Doc. 481-6, pp. 47-49; Doc. 481-69, p. 2). White attended a meeting in

Springfield with either Yurkovich or Atchison, where he learned about the plan to conduct the

searches (Doc. 481-7, pp. 71-72). McAllister testified that he was not involved in the decision to

conduct facility-wide searches, but he was involved in planning their execution once the decision

was made to conduct the shakedowns (Doc. 481-17, pp. 114-115).

McAllister and White were responsible for creating written operations orders (Doc. 481-

17, pp. 85-86; Doc. 481-7, p. 70; Doc. 481-6, pp. 54-55; Doc. 481-17, pp. 123-124). The orders

outlined the schedule and staffing needs for the shakedowns (Doc. 481-64, p. 2). The statewide

operations require approval and supervision by senior members of the IDOC administration,

including Yurkovich, Atchison, and Godinez (Doc. 481-6, p. 33, 46; Doc. 481-16, p. 100; Doc.

481-72, p. 2). The written orders were not distributed to the facility tactical team commanders,

assistant commanders, or any tact team members (Doc. 481-17, pp. 132-136; Doc. 481-8, p. 75;

Doc. 481-20, p. 66; Doc. 671-1, p. 21). Only the warden and assistant warden of each facility

received a copy of the written orders (Doc. 481-17, pp. 132-136).

The written orders omitted several key details about the plan, including how the

shakedowns would be performed (Doc. 481-66, pp. 2-5). The orders listed high-level,

generalized “objectives” for the searches that stated what the searches would include. Id. at 1, 2.

Instead, the details about how the shakedowns would be performed were communicated orally

(Doc. 481-7, pp. 36-37; Doc. 481-8, pp. 70-71; Doc. 481-10, pp. 71-74, 101; Doc. 481-11, pp.

65-67; Doc. 481-14, pp. 40-41). In briefings, McAllister or White discussed the shakedown plan

with facility tact commanders, including the specifics of how the shakedown operation was to be

conducted (Doc. 481-10, pp. 71-73, 75; Doc. 481-7, p. 37). McAllister or White laid out “how

you would perform your duties of the day,” “what [prisoners] could wear out of the cell,” “[h]ow

you [were] to cuff,” and “[h]ow they were to . . . conduct their self, how to handle the inmates,”

among others (Doc. 481-1, pp. 71-73). The facility’s Warden and Assistant Warden of

Operations also attended these briefings (Doc. 481-17, pp. 139-140; Doc. 481-7, pp. 36-37; Doc.

481-18, pp. 56-57; Doc. 481-19, pp. 131-132).

Facility tact commanders and assistant commanders then met with the rest of their teams,

where they would discuss the shakedown plan with each member of the tact team, relaying the

instructions they had been given by White and/or McAllister (Doc. 481-11, pp. 65-67; Doc. 481-

10, pp. 73-74; Doc. 481-15, p. 73; Doc. 481-14, pp. 40-41). Immediately before they began

marching toward the cellhouse to begin the shakedown, the entire group would convene for a

mass group briefing, delivered by the prison’s Warden and McAllister or White, reiterating the

shakedown plan and its objectives (Doc. 481-10, pp. 75-76; Doc. 481-14, pp. 40-41; Doc. 481-7,

pp. 36-37). Nothing was distributed in writing during or after the oral briefings. Id. The oral

instructions contained instructions on how to conduct the shakedowns that were absent from the

written operations orders (Doc. 481-66; Doc. 481-7, pp. 84-86; Doc. 481-23, pp. 127-131.

McAllister and/or White were present during the shakedowns and were responsible for

supervising the tact team members during the shakedown (Doc. 481-6, p. 50; Doc. 481-17, p.

188). White was the primary supervisor of the shakedowns at Menard and Illinois River (Doc.

481-17, p. 222). McAllister was the primary supervisor at Big Muddy and Lawrence. Id.; Doc.

481-17, pp. 187, 258-265. Facility tact commanders and assistant commanders reported to

McAllister and/or White, who would then ensure that the uniform plan was being carried out

across the facilities (Doc. 481-14, p. 62; Doc. 481-11, pp. 123-124; Doc. 481-10, pp. 107-109;

Doc. 481-8, pp. 80-81, 86-89; Doc. 481-75 at ¶ 4; Doc. 481-7, p. 79; Doc. 481-11, pp. 116-122).

Each facility Warden attended the shakedowns because they understood that they were

responsible for the conduct of staff at the prison (Doc. 481-18, p. 105; Doc. 481-19, pp. 179-180;

Doc. 481-20, p. 17).

Tact team members wore an orange jumpsuit, a vest, a helmet with a face shield, gloves,

a 3-foot baton, pepper mace, a flashlight, and a radio (Doc. 481-7, pp. 38-39; Doc. 486-1, p. 51).

The uniforms concealed team members’ identities – the helmet covered their face, the gloves

prevented a prisoner from being able to identify even the race of the officer, and the jumpsuits

had no identifying names or numbers (Doc. 481-7, p. 39; Doc. 486-1, p. 51). IDOC staff and

prisoners referred to the tact team as “Orange Crush” (Doc. 481-6, pp. 162-163).

Officers generally began the searches by entering the inmates’ living area quickly and

noisily, including yelling and banging batons on railings, to alert the inmates and put them on

notice that a search was going to occur (Doc. 642-5, p.141; Doc. 642-22, p. 123; Doc. 642-8, pp.

239-240). Tact team members were instructed to march in lockstep or stomp into the cellhouse

and begin banging and crashing their batons on the cells (Doc. 481-23, p. 206). According to the

current IDOC Statewide Tact Commander Zach Sarver, the IDOC now prohibits tact team

members from entering cellhouses in this way while conducting facility-wide searches (Doc.

642-11, pp. 82-83).

After entering the cellhouse, tact team members strip searched inmates individually in

their cells. Defendants testified that strip searches proceeded from head to toe according to

IDOC policy (Doc. 642-14, pp. 36-38; Doc. 642-11, pp. 122-123; Doc. 642-7, pp. 54-61; Doc.

642-16, pp. 86-87; Doc. 642-39, pp. 54-56). Class members testified that they were ordered to

strip and then manipulate their genitals and spread their buttocks before putting their hands in

their mouths to widen it and moving their tongue (Doc. 481-31, pp. 56-57; Doc. 481-33, pp. 73-

74; Doc. 481-32, p. 58; Doc. 481-29, pp. 45-46, 51-54; Doc. 481-30, p. 42; Doc. 481-34, p. 71;

Doc. 481-36, pp. 30, 54, 74-75; Doc. 481-37, pp. 47-48; Doc. 481-38, p. 26; Doc. 481-39, pp.

13-14, 22-23; Doc. 481-40, pp. 93-96, 110; Doc. 481-41, pp. 30-31; Doc. 481-42, pp. 37-46;

Doc. 481-43, pp. 29-30; Doc. 481-44, pp. 36-37; Doc. 481-45 pp. 49-50; Doc. 481-46, pp. 40-41,

84; Doc. 481-47, pp. 63-64).

While the strip searches were occurring, tact team members ordered prisoners to hand

them their clothing (including their underwear) for a close, manual inspection and search (Doc.

642-11, pp. 121-122). After the search, prisoners were told that they must wear their “prison

blues” but could not wear underwear (Doc. 481-31, pp. 56-57; Doc. 481-30, pp. 44-45; Doc.

481-36, pp. 72-73; Doc. 481-37, pp. 47-48; Doc. 481-38, p. 27; Doc. 481-39, pp. 14-15, 25; Doc.

481-40, p. 111; Doc. 481-41, p. 37; Doc. 481-42, pp. 37-46; Doc. 481-43, p. 61; Doc. 481-44,

pp. 36-37; Doc. 481-45, p. 52; Doc. 481-46, pp. 42, 83; Doc. 481-47, p. 133).

Officers then escorted inmates to waiting areas in pairs, walking in close formation, with

their heads down, and handcuffed in the back with their palms facing out and thumbs up (Doc.

642-5, pp. 82-83). Class members were marched so close with prisoners in front and behind that

their genitals made physical contact with the prisoner in front of them and the genitals of the

prisoner behind them (Doc. 481-31, pp. 74, 147; Doc. 481-33, pp. 62-67, 92-97; Doc. 481-29,

pp. 68-79; Doc. 481-30, pp. 50-51, 55-56; Doc. 481-36, 44-45; 88-89, 93-94; Doc. 481-37, pp.

61-70; Doc. 481-38, pp. 33, 62-63; Doc. 481-40, pp.130-144; Doc. 481-41, pp. 42-49, 62-77;

Doc. 481-42, pp. 63-71; Doc. 481-43, pp. 35-40; Doc. 481-44, pp. 46-50, 77-78; Doc. 481-45,

pp. 67-71; Doc. 481-46, pp. 56-59; Doc. 481-47, pp. 115-120; Doc. 481 at 12 n.9). Class

members described the close formation mass movement as “nuts to butts” or “nuts to hands”

(Doc. 481-19, pp. 222-225; Doc. 481-27, p. 37). Prisoners were marched single file outside in

two columns with tact team members in full gear flanking them on all sides. Id. Several class

members testified that during line movement, tact team members pushed and shoved them so

they were in contact with other prisoners. Numerous class members reported being pushed,

punched, kneed, poked with batons, and subjected to verbal abuse by tact team members (Doc.

481-31, pp. 74, 86-94, 110-112; Doc. 481-33, pp. 92-97, 104-112; Doc. 481-29, p.69; Doc. 481-30,

pp. 51-56; Doc. 481-34, 83-85; Doc. 481-35, pp. 21-26; Doc. 481-36, pp. 85-86; Doc. 481-37, p. 34,

68-69; Doc. 481-38, pp. 33-48; Doc. 481-40, pp. 113-120, 157-158; Doc. 481-41, pp. 39-40, 46-77;

Doc. 481-42, pp. 51-61, 71-82; Doc. 481-43, pp. 35-42; Doc. 481-44, pp. 46-56; Doc. 481-45, pp.

65-70; Doc. 481-46, pp. 55-56; Doc. 481-47, pp. 73-83). Other class members could hear and/or

see this abuse taking place. Id.

Inmates then remained in the waiting area while the tact teams searched every cell before

being returned to their cells (Doc. 642-5, pp. 90-92). Defendants offered differing accounts of

the conditions under which prisoners were held, but those accounts were consistent in that they

reported that prisoners remained cuffed, standing for hours at a time, facing walls, and unable to

speak (Doc. 481-7, pp. 82-83, 92; Doc. 481-17, p. 241; Doc. 481-6, p. 75; Doc. 481-9, pp. 86-

90).

The wardens of the respective facilities sent Yurkovich summaries of the searches after

they were completed (Doc. 642-42; Doc. 642-43; Doc. 642-2, pp. 128-129). As the shakedowns

were occurring, prisoners submitted grievances complaining about the abuses they suffered and

about their missing property. Atchison received status updates at the end of the day with

highlights of what was found or use of force, segregation, transfer, or assault incidents (Doc.

481-6, p. 79). Yurkovich received these daily reports as well (Doc. 481-16, pp. 100, 107-109).

Neither White nor McAllister investigated allegations of abuse or misconduct reported in the

facilities they supervised (Doc. 481-7, p. 150). Multiple emails were exchanged among tact team

officers and commanders as early as April 2014 that highlighted prisoners’ experiences with

abusive and unprofessional staff during the shakedowns (Doc. 671-10). In these exchanges, they

discussed the “overwhelming amount of allegations of staff misconduct” from prisoners in

different facilities, including accounts of tact team members eating their food and leaving empty

candy wrappers, missing property not documented on shakedown slips, broken damaged

property, property receipts missing, urine on bed sheets and in property boxes, allegations of

physical abuse such as slapping the backs of their heads, forcefully placing their heads against

walls ….” (Doc. 671-2, pp. 41-42).

The Supervisory Defendants

The 2014 facility tact commanders, assistant tact commanders, wardens, and assistant

wardens at each facility included:

Menard Illinois River Big Muddy Lawrence

- Jerry Witthoft - Robert Arnett - David Hermetz - Michael Gilreath

- Frank Eovaldi - Brian Piper - Chris White - Timothy McAllister

- Kim Butler - Greg Gossett - Ken Finney - Stephen Duncan

- Alex Jones - Stephanie Dorethy - Zachary Roeckeman - Richard Moore

- Robert Craig

Defendant Kimberly Butler was transitioning from the Menard assistant warden of

programs to facility warden in April 2014, in which capacity she was responsible for the entire

operation of the facility (Doc. 642-18, pp. 26-29). Butler attended the pre-operation tactical

briefings for the purpose of “welcoming all of the tact team members to the facility, giving them

an idea of what they were searching for in regards to weapons.” Id. at p. 56. Butler also

participated in drafting and reviewing operations orders for the shakedowns. Id. at pp. 38-42,

48-54. During the searches, Butler and her senior staff “would just walk around the galleries and

talk to staff and talk to the offenders…Just to make ourselves available, you know, be seen, and

if anyone had any issues, they could talk to us about them.” Id. at p. 32.

Defendant Alex Jones was temporarily assigned as Menard’s assistant warden of

operations during the 2014 facility-wide searches (Doc. 642-21, pp. 36-37). Jones could not

recall the search operations at Menard. Id. at pp. 37, 45, 50. He also had no memory of playing a

role in either planning, drafting, or receiving the operations orders. Id. at pp. 43-44.

Defendant Jerry Witthoft was the Menard tactical team commander in 2014, responsible

for overseeing tactical team training, recruitment, and operations (Doc. 642-54, pp. 35-38, 52).

Witthoft could not recall details of the 2014 searches at Menard. Id. at p. 57. During such

operations, however, Witthoft testified that he would have been responsible as the “institutional

commander” for assigning facility tactical team members to the holding areas where inmates

wait while the cellhouse searches occurred, and for assigning team members to cellhouse

searches. Id. at pp. 72-74. When participating in a facility-wide search as the tactical team

commander, Witthoft supervised the team’s search operations, including “assist[ing] them to do

their job,” and ensuring that they “adher[ed] to policy.” Id. at 78.

Defendant Frank Eovaldi was the Menard assistant tactical team commander in 2014,

responsible for tracking team members’ hours, rostering team members for operations, and

generally overseeing the facility tactical team (Doc. 642-39, p. 23). While he has no memory of

specific operation days, Eovaldi believes he participated in the 2014 facility-wide searches at

Menard, Big Muddy, and Lawrence. Id. at pp. 39-44.

Defendant Gregory Gossett was the Illinois River warden in 2014, responsible for daily

operations (Doc. 642-6, pp. 22-26). Gossett took part in drafting the operations order for the

Illinois River facility-wide search. Id. at pp. 103-105. On the first day of the search, Gossett

addressed the tactical team with a “[w]elcome, and thank you,” telling the team where they could

get assistance should they have any questions about the facility or its operations. Id. at pp. 149-

150. Once the operation began, Gossett toured the facility each day of the search, observing “all

stages” of the operation. Id. at 144, 175.

Defendant Stephanie Dorethy was the Illinois River assistant warden of operations in

2014, overseeing “the operations of the facility, various departments like security, dietary,

maintenance” (Doc. 642-25, pp. 10, 26). Dorethy was present for some of the tactical team

meetings. Id. at pp. 48-49. She testified that for the facility-wide search, the tactical teams

reported to the tactical commander, who then addressed any issues or concerns to the warden or

assistant warden or central regional commander. Id. at p. 51. During the operations, Dorethy

would have initially gone to the location the tactical team was searching and then she would tour

other units and attend to her assistant warden duties. Id. at p. 53. She did not stay with the

tactical team, but was instead “intermingling throughout the facility,” “basically kind of

check[ing] things out, mak[ing] sure there’s no issues,” and then attending to her regular duties

as assistant warden. Id. at pp. 52-54.

Defendant Robert Arnett was the Illinois River tactical commander in 2014 (Doc. 642-19,

pp. 16, 26). Arnett participated in the Illinois River facility-wide search, but not those at the

other three facilities. Id. at pp. 27-31. Arnett’s primary role for the Illinois River search was to

help instruct tactical team members during the operation. Id. at pp. 34, 57. Arnett, as “the host

commander” at Illinois River, did anything that was needed to be done for the logistics of the

search – getting more gloves, obtaining water for team members, making sure inmates were

restrained, strip searched, lined up, and directed to the holding area, and ensuring the Illinois

River tactical team was “carrying out the operation according to the procedures… discussed

during the [pre-operations] commanders briefing.” Id. at pp. 34, 62, 68-70).

Defendant Brian Piper was the Illinois River assistant tactical commander in 2014 (Doc.

342-47, pp. 16-17). Piper’s role included ensuring that the required number of facility tactical

team members were assigned to the search; he arrived at the facility early to gather supplies

needed for the tactical teams. Id. at p. 82. Piper participated in each day of the Illinois River

search, assigned to overseeing the gymnasium or segregation yard holding areas where inmates

waited while their cells were searched; he did not take part in searching housing unit cells. Id. at

pp. 88-90, 109. After the morning briefings for the tactical teams, but prior to the inmates’

arrival at the day’s holding area, Piper’s team swept the holding area for contraband, and did so

again after the inmates left the holding area. Id. at pp. 93-94, 110. Piper was responsible for

ensuring that operations in the holding area were conducted consistent with the morning briefing.

Id. at pp. 108-109.

Defendant Zack Roeckeman was the Big Muddy warden in 2014, responsible for the

“overall supervision of the facility, including all safety and security” and the “supervision of

staff” (Doc. 642-45, pp. 12, 25). Roeckeman was not involved in deciding to conduct a facility-

wide search at Big Muddy but did help draft the operations order for the search. Id. at 30, 35.

Roeckeman was present for the first day of the operation to welcome the tactical team, thanking

them in their effort to “help us make the facility safer.” Id. at pp. 32-33. During the search

week, Roeckeman “stopped by just to check how things were going from time to time.” Id. at p.

47.

Defendant Robert Craig was the Big Muddy assistant warden of operations in 2014,

responsible for the day-to-day operations and the staff of the facility (Doc. 642-46, pp. 22-23).

Although Craig was second in command after tact team commander McAllister, he testified that

he had no role in deciding to conduct a facility-wide search at Big Muddy and no role in deciding

the logistics of the search. Id. at pp. 22-23, 28. Craig was present and spoke with McAllister

during the morning briefings and was present and available during the shakedowns to assist. Id.

at p. 32. During the searches, Craig went along with his regular daily responsibilities. Id. at pp.

29-32.

Defendant David Hermetz was the Big Muddy tactical commander in 2014 and was

present for the Big Muddy and Menard facility-wide searches (Doc. 642-24, pp. 26, 35).

Hermetz attended the pre-operation briefings held for tactical commanders for both the Big

Muddy and Menard searches, which he described as “very similar.” Id. at p. 60. Hernetz’s role

was to maintain the security of the operation while it was occurring. Id. at p. 88. After the pre-

operation briefings, Hermetz’s responsibilities included orally communicating to tactical team

members the operations order details from those briefings and ensuring team members carried

out the searches consistent with those instructions. Id. at pp. 47, 50, 67.

Defendant Chris White was the Big Muddy assistant tactical commander in the spring of

2014, and was then appointed tactical commander later that summer (Doc. 642-16, pp. 170-171).

He was not present during the Big Muddy facility-wide searches in 2014 because he was

teaching in Springfield. Id. at p. 53. White did participate in the shakedowns at Menard and

Lawrence that year. Id. at p.78-83. White testified that, generally, tactical team leadership

obtained operational information regarding facility-wide searches at a commander’s briefing

conducted each day of facility-wide multiday searches. Id.

Defendant Kenneth Finney became the Big Muddy assistant tactical commander

sometime during the summer of 2014 (Doc. 642-17, pp. 23, 142-143). He recalled participating

in the shakedowns at Lawrence, Menard, and Big Muddy but could not recall details about how

the shakedowns occurred. Id. at pp. 121-124. Finney never saw an operations order for an

IDOC facility-wide search. Id. at pp. 144-145.

Defendant Stephan Duncan was the Lawrence warden in 2014, overseeing operations for

the entire facility and responsible for the safety of inmates and staff (Doc. 642-20, pp. 6, 17).

Duncan provided input on the drafting of the operations order for the Lawrence search and

attended the operations, as well as several pre-operations tactical team briefings. Id. at pp. 40-

42, 51-53. During those briefings, Duncan would address the team, focusing on the types of

contraband being searched for, advising the non-Lawrence team members about the types of

personal property allowed at the facility, and stressing that the team be professional and follow

the chain of command. Id. at pp. 51, 66. Once the operations began, Duncan undertook his

normal duties and “ran the facility,” but would “periodically . . . check, see how things were

going, watch some of the movement . . . go to the cell houses while they were conducting the

strip searches.” Id. at pp. 68-69, 72-73. Duncan “witnessed that whole operation at least two or

three times that week.” Id.

Defendant Richard Moore was the Lawrence assistant warden of operations in 2014,

responsible for security-related issues and inmate movements throughout the facility (Doc. 642-

38, pp. 21-22). Moore had no role in planning the facility-wide search at Lawrence or in drafting

the operations order for the search. Id. at pp. 62-64. Moore was present at operational plan

briefings with tact team members and conveyed prisoners’ personal property concerns to

McAllister. Id. at pp. 66-68. Moore was tasked with ensuring tact team compliance with the

uniform plan in his facility and provided support to McAllister. Id. at pp.78-82.

Defendant Michael Gilreath was Lawrence’s tact commander who was transitioning to

active military duty in 2014 (Doc. 642-15, pp. 65-70). Gilreath could not recall his role in the

Lawrence shakedown and had no memory of the pre-operation briefings, the strip searches, the

cell searches, or the movement of inmates. Id. at pp. 129-130.

Defendant Tim McAllister was transitioning from his role as the Lawrence assistant

tactical commander to the role of tactical commander in 2014, overseeing tactical members good

standing, training, assignments, and communications (Doc. 642-40, at pp. 45, 69-72). McAllister

had no role in preparing the search operations order and learned about the Lawrence searches the

day before the operation, being told he was to arrange for 25 tactical team members for the

searches. Id. at pp. 99, 119-120. On operation day, McAllister arrived before other team

members and obtained any needed supplies for the day’s work. Id. at p. 105. McAllister

attended the pre-operations tactical commanders’ briefings, in which the operations were

outlined, after which commanders met with their individual teams to convey the day’s operation

detail; the entire tactical group then met, and the day’s operation would begin. Id. at pp. 117-

119. Through the course of the Lawrence facility operation, McAllister participated in some

strip searches and searched some cells, going “back and forth” from the cellhouses to the inmate

holding area. Id. at pp. 148-149, 164-168.

Discussion

Defendants move for summary judgment with respect to Counts I, II, and III, asserting

that Plaintiffs have not identified evidence of a uniform plan to violate their Eighth Amendment

rights and that there is also no evidence that each individual supervisory defendant was

personally involved in developing or executing such a plan. Defendants also move for summary

judgment on behalf of all but nine of the non-supervisory defendants on the same claims,

asserting that there is no evidence connecting those individuals to any violation of Plaintiffs’

rights.

Summary judgment is proper only if the moving party can demonstrate that there is no

genuine issue as to any material fact. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986). The moving party is entitled to summary judgment where the non-moving

party “has failed to make a sufficient showing on an essential element of her case with respect to

which she has the burden of proof.” Celotex, 477 U.S. at 323. If the evidence is merely

colorable, or is not sufficiently probative, summary judgment may be granted. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 249–50 (1986). Any doubt as to the existence of a genuine

issue of material fact must be resolved against the moving party. Lawrence v. Kenosha County,

391 F.3d 837, 841 (7th Cir. 2004).

Supervisory Defendants Motion for Summary Judgment

Count I

The Eighth Amendment prohibition on cruel and unusual punishment bars prison

authorities from unnecessarily and wantonly inflicting pain on inmates. See Hope v. Pelzer, 536

U.S. 730, 737 (2002). This prohibition against cruel and unusual punishment of inmates includes

both physical and psychological harm. See Beal v. Foster, 803 F.3d 356, 357–58 (7th Cir. 2015).

In the context of searches of prisoners, a prisoner states a claim under the Eighth Amendment

when he plausibly alleges that the strip-search in question was motivated by a desire to harass or

humiliate rather than by a legitimate justification, such as the need for order and security in

prisons. Rivera v. Drake, 497 F. App'x 635, 637 (7th Cir. 2012). The infliction of pain on

prisoners without any legitimate penological justification “always violates contemporary

standards of decency and need not produce serious injury in order to violate the Eighth

Amendment.” Calhoun v. DeTella, 319 F.3d 936, 939 (7th Cir. 2003) (citing Hudson v.

McMillian, 503 U.S. 1, 9 (1992)); Fillmore v. Page, 358 F.3d 496, 504 (7th Cir. 2004)

(“infliction of pain that is totally without penological justification is per se malicious”).

In affirming class certification, the Seventh Circuit noted Defendants’ concession that the

shakedowns were conducted according to a uniform plan created and implemented by the

Defendants, and that the plan was executed in a uniform manner under their supervision. The

only dispute was the content of that uniform policy – specifically, whether that uniform policy

reflected the version alleged by the Plaintiffs or the one alleged by the Defendants. Defendants

argue the record establishes that their version of events surrounding the planning and

implementation of the shakedowns should be believed – that the shakedowns were conducted

pursuant to IDOC policies, and that those policies were designed not to “cause pain or

humiliation” but rather to further IDOC’s penological objectives. Citing the testimony of the

supervisory Defendants and the opinions of defense expert Larry Reid, Defendants maintain that

no reasonable jury could conclude that the searches were unconstitutional.

Defendants’ arguments are belied by the evidence in the record. Plaintiffs have adduced

evidence that the written orders differed from verbal orders. The details about how the

shakedowns would be performed were only communicated orally – nothing was distributed in

writing during or after the oral briefings. Class members across the four facilities detailed the

same complaints about the shakedowns across their grievances and throughout depositions in this

case. The parties present conflicting evidence regarding many aspects of the shakedowns,

including the use of batons, reverse strip searches, handcuffing, line formation, and the way cells

were searched. Plaintiffs’ experts Dan Pacholke and Pat Hurley opine that multiple aspects of

the shakedowns were contrary to widely accepted correctional standards and had no legitimate

penological purpose. Defense expert Reid comes to the opposite conclusion. The conflicting

evidence and dueling expert opinions must be left to a jury to weigh and decide which version to

believe.

Defendants further argue that even if there was evidence of a uniform policy to violate

Plaintiffs’ rights, Plaintiffs must show that each supervisory defendant personally participated in

the deprivation. The personal responsibility requirement of section 1983 is satisfied if the

conduct causing the constitutional deprivation occurs at the official's direction or with his or her

knowledge and consent. Williams v. Shah, 927 F.3d 476, 482 (7th Cir. 2019). Viewing the

evidence in the light most favorable to the Plaintiffs, the Court finds that there is sufficient

evidence in the record to deny summary judgment to most of the supervisory Defendants:

Statewide supervisors: Godinez approved the statewide shakedowns and received notice

of abuses during the shakedowns. Yurkovich and Atchison were responsible for

developing the initial shakedown plans and had daily conversations with on-the-ground

staff during the shakedown. White and McAllister were responsible for helping to draft

operations and supervised and/or observed various stages of the searches.

Menard: Butler attended the pre-operation tactical briefings and was aware of the plans.

Butler also participated in drafting and reviewing operations orders for the shakedowns.

Witthoft supervised the tact team’s search operations and ensured that they were

conducting the search according to the uniform plan. Eovaldi participated in the searches

at Menard, Big Muddy, and Lawrence.

Illinois River: Gossett took part in the drafting of the operations orders for the Illinois

River search and was involved in observing all stages of the operation. Dorethy was

present for some of the tactical team meetings. During the operations, Dorethy would

have initially gone to the location the tactical team was searching and then she would tour

other units and attend to her assistant warden duties. She periodically checked on the

progress throughout the day. Arnett participated in the search at Illinois River and his

primary role was to help instruct tactical team members during the operation. Piper

participated in the searches and was present for morning briefings, and gave instructions

to tact team members.

Lawrence: Duncan provided input on drafting the operations orders for the Lawrence

searches and attend the operations and pre-operations tactical team briefings. Moore was

present at operational briefings with tact team members and conveyed personal property

concerns to McAllister. Tim McAllister attended pre-operations tactical team briefings

and participated in some strip searches and cell searches.

Big Muddy: Roeckeman assisted in drafting operations for the Big Muddy search and

checked on the progress of the searches throughout the week. Craig spoke with

McAllister during the morning briefings and was present and available to assist during

the shakedowns. Hermetz was responsible for managing the security of the operation

while it was occurring at Big Muddy and Menard. he attended pre-operational tactical

team meetings. Chris White attended tactical team commander briefings. Finney

participated in the shakedowns at Big Muddy, Lawrence, and Menard.

However, summary judgment will be granted as Defendants Jones and Gilreath. Even

viewing the evidence in the light most favorable to the Plaintiffs, Jones and Gilreath had no

memory of playing a role in the operations at their facilities, did not stay with the tact team or

participate in briefings, and performed their regular job duties during searches.

Accordingly, Defendants’ motion is granted in part and denied in part as to Count I. 3

Counts II and III

In a footnote, Defendants move for judgment as a matter of law on Plaintiffs’ claims that

Defendants conspired to violate their Eighth Amendment rights and failed to intervene to protect

those rights. They argue that because Counts II and III are premised on the same underlying

Eighth Amendment theory, if Plaintiffs’ core Eighth Amendment claim fails, their conspiracy

and failure-to-intervene claims likewise fail. It is rarely proper to present substantive arguments

in footnotes. See Mahaffey v. Ramos, 588 F.3d 1142, 1146 (7th Cir. 2009) (“Perfunctory,

undeveloped arguments ... are waived.”). That said, the Court finds the evidence sufficient to

withstand summary judgment.

To establish a prima facie case of a civil conspiracy, a plaintiff must show (1) an express

or implied agreement among defendants to deprive plaintiff of his or her constitutional rights and

3 In the alternative, Defendants suggest that the Court grant partial summary judgment as to aspects of Plaintiffs’

Eighth Amendment claims. For example, finding that Defendants did not violate Plaintiffs’ rights by their loud

entrance or by preventing them from wearing underwear. The Court declines the invitation. The conflicting

evidence regarding multiple aspects of the searches considered together create genuine issues of material facts

preventing the granting of summary judgment on Counts I, II, and III.

(2) actual deprivations of those rights in the form of overt acts in furtherance of the agreement.

Scherer v. Balkema, 840 F.2d 437, 442 (7th Cir. 1988). Here, there is evidence in the record

about the planning, implementation, and communication between the Defendants regarding the

shakedowns and evidence of abuses that occurred during the shakedowns. There is also

evidence that the defendants were aware of but ignored prisoner complaints about the

shakedowns and how they were conducted. This evidence sufficiently supports the failure-to-

intervene claim. Accordingly, Defendants’ motion is denied on Counts II and III as to the

remaining supervisory Defendants.

Qualified Immunity

Determining whether a defendant state officer is entitled to qualified immunity involves

two inquiries: “(1) whether the facts, taken in the light most favorable to the plaintiff, make out a

violation of a constitutional right, and (2) whether that constitutional right was clearly

established at the time of the alleged violation.” Williams v. City of Chicago, 733 F.3d 749, 758

(7th Cir.2013). If either inquiry is answered in the negative, the defendant official is entitled to

summary judgment.

Defendants assert that qualified immunity is warranted because “the policies pursuant to

which these searches occurred – inmates strip searched, handcuffed, moved to secure areas, and

returned to their cells after searched – are grounded in penological purposes and consistent with

common practices across the United States.” This argument presumes that Defendants’ factual

narrative regarding the searches is believed.

Prisoner searches intended to inflict unnecessary pain and humiliation without any

legitimate penological justification violate the Eighth Amendment. The manner in which the

strip search is conducted must pass constitutional muster. See Mays, 575 F.3d at 649, 650

(collecting cases). Here, factual disputes regarding the underlying motivation and the method in

which these searches occurred prevents the granting of qualified immunity to the Defendants.

Official Capacity Claims

In the Second Amended Complaint, Plaintiffs request injunctive relief as to Counts I and

II. Defendants move for summary judgment on official capacity claims against the Director of

the Department4. Plaintiffs did not respond to this portion of Defendants’ motion, and the Court

finds Defendants’ arguments to be well-taken.

The Director is amenable to suit only to remedy “an ongoing violation of federal law.”

Driftless Area Land Conservancy v. Valcq, 16 F.4th 508, 521 (7th Cir. 2021). Plaintiffs have not

identified an ongoing violation of federal law, nor have Plaintiffs articulated that there is any real

and immediate threat that they will experience due to the conduct alleged in this case.

Accordingly, Defendants motion is granted as to the official capacity claims against the Director

of IDOC.

Count V

Citing T.S. v. Cook Cnty, 67 F.4th 884, 890 (7th Cir. 2023), Defendants move for

summary judgment on Plaintiffs’ state law intentional infliction of emotional distress claims on

the basis these claims are barred by Illinois state-law sovereign immunity. Plaintiffs did not

respond to this portion of Defendants’ motion.

In T.S., the Seventh Circuit held that the Illinois Court of Claims has exclusive

jurisdiction over all claims against the state founded on any law of the state. The Court also

clarified that the officer suit exception does not apply in a damages suit. T.S., 67 F.4th at 894

(reversing the district court for applying the officer suit exception to a case involving damages

claims against a state agent in his personal capacity). Thus, because Plaintiffs only seek

4 Latoya Hughes is the current Acting Director of the Department.

compensatory damages against Defendants, their claims are barred. Accordingly, Defendants are

entitled to summary judgment on Count V of Plaintiffs’ Second Amended Complaint.

Non-Supervisory Defendants’ Motion for Summary Judgment

Defendants move for summary judgment on Plaintiffs’ claims against 432 non-

supervisory defendants – individual tact team officers who Plaintiffs allege personally violated

their Eighth Amendment rights by participating in the 2014 facility-wide searches.5 Instead of

responding to the merits of Defendants’ motion, Plaintiffs assert that there is no trial pending

against the non-supervisory Defendants and therefore, no need to resolve any claims against

those defendants at this time.

Under Rule 56(b), “a party may file a motion for summary judgment at any time until 30

days after the close of all discovery.” Fed. R. Civ. P. 56(b). Although Plaintiffs sought class

certification as to the 22 supervisory Defendants, this case has never been bifurcated between the

two groups of defendants. The numerous amendments to the Scheduling Order applied to all

defendants and did not distinguish between supervisory and non-supervisory defendants. And

pursuant to the most recent Scheduling Order, fact discovery as to all defendants closed on

December 15, 2020.

That said, the Court takes this portion of the motion UNDER ADVISEMENT. Plaintiffs

shall file a response within 30 days of the entry of this Order. Defendants may seek leave to file

a reply pursuant to the undersigned’s Case Management Procedures.

Conclusion

Defendants’ motion for summary judgment (Doc. 642) is GRANTED in part and

5 Defendants do not move for summary judgment as to the following nine non-supervisory Defendants: Bradley

Clark, Steven Conrad, Justin Eckelberry, Jason Furlow, James Gray, Marcus Jenkins, Brian Livingston, John

Maragni, and Carson Winters. According to Defendants, these nine individuals are the only non-supervisory

Defendants who were ever named by any named or consolidated Plaintiff as having personally engaged in any

specific conduct that Plaintiffs assert is unconstitutional.

DENIED in part. Defendants’ motion is GRANTED as to Defendants Alex Jones and Michael

Gilreath on Plaintiffs’ claims in the Second Amended Complaint; GRANTED as to Count V of

the Second Amended Complaint as to all Defendants; and GRANTED as to any official capacity

claims against the Director of the IDOC. Defendants’ motion is DENIED as to the remaining

supervisory Defendants as to Count I, II, and III. Defendants’ motion is TAKEN UNDER

ADVISEMENT as to the non-supervisory Defendants. The Clerk of Court is DIRECTED to

enter judgment in favor of Defendants Jones and Gilreath and against Plaintiff at the close of this

case.

IT IS SO ORDERED.

DATED: January 8, 2025 Now i

STACI M. YANDLE

United States District Judge

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