Carter v. Harrold

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

ROCK ISLAND DIVISION

RICKEY CARTER, )

Plaintiff, )

)

v. ) Case No. 24-4208

)

TYRONE BAKER et al., )

Defendants. )

ORDER

COLLEEN R. LAWLESS, United States District Judge:

Before the Court for screening is a Motion for Leave to File a Second Amended

Complaint (Doc. 21) filed under 42 U.S.C. § 1983 by Rickey Carter, an inmate at Lawrence

Correctional Center. Plaintiff has also filed a Petition to Proceed in forma pauperis (“IFP”)

(Doc. 22) and Motions for Counsel (Docs. 5, 16, 23).

I. Second Amended Complaint

A. Screening Standard

The Court must “screen” Plaintiff’s complaint and dismiss any legally insufficient

claim or the entire action if warranted. 28 U.S.C. § 1915A. A claim is legally insufficient if

it “(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted;

or (2) seeks monetary relief from a defendant who is immune from such relief.” Id. In

reviewing the complaint, the court accepts the factual allegations as accurate, liberally

construing them in the plaintiff’s favor. Turley v. Rednour, 729 F.3d 645, 649 (7th Cir. 2013).

However, conclusory statements and labels are insufficient. Enough facts must be

provided to “state a claim for relief that is plausible on its face.” Alexander v. United States,

721 F.3d 418, 422 (7th Cir. 2013) (citation omitted).

B. Factual Allegations

Plaintiff’s second amended pleading lists the following officials at Hill

Correctional Center as Defendants: Warden Tyrone Baker, Internal Affairs Lieutenant

McCune, Corrections Sergeants J. Harrold and Novak, and Corrections Officers

Carpentier and Little.

On August 18, 2024, Plaintiff was in his cell when his cellmate threw hot water on

him, struck his head and face, and attempted to rape him. Plaintiff fell to the floor, where

he was continuously punched in his face. During that attack, which Plaintiff states lasted

an hour, Plaintiff was able to use his leg to kick the cell door and scream for help.

Plaintiff states that Defendants Carpentier and Novak falsified logbook entries

showing they made tours of the area during the assault, further stating that video

evidence will show that Carpentier and Novak did not return to the housing unit after

lockup, which Plaintiff claims violates Illinois Department of Corrections (“IDOC”)

security policy.

According to Plaintiff, during a shift change, Defendant Carpentier informed

Defendant Harrold that an unidentified inmate told him he heard an inmate screaming

for help. After attempting to find its source, Harrold determined it was coming from

Plaintiff’s cell. Plaintiff asserts that Harrold’s claim of a second-wing tour was untrue.

Plaintiff filed a grievance against Defendants Carpentier and Harrold that Defendants

Little and McCune investigated, which Plaintiff asserts was a “sham.” (Pl. Compl., Doc.

21 at 10.)

C. Analysis

Plaintiff’s Motion for Leave to File a Second Amended Complaint (Doc. 21) is

granted. The Clerk of the Court is directed to docket Plaintiff’s second amended pleading.

Plaintiff contends Defendants Baker, Carpentier, Harrold, Little, McCune, and

Novak failed to protect him.

State officials must “take reasonable measures to guarantee the safety of the

inmates.” Hudson v. Palmer, 468 U.S. 517, 526–27 (1984). For a state official to be held liable

for failure to protect, a plaintiff must satisfy a test that contains both an objective and a

subjective component. Farmer v. Brennan, 511 U.S. 825, 834 (1994). The objective

component requires the risk of harm to be “sufficiently serious.” Id. The subjective

component focuses on whether the official had a “sufficiently culpable state of mind.” Id.

To satisfy the subjective component, the official must know of and disregard an

excessive risk to a prisoner’s safety. Id. at 837. “In failure to protect cases, ‘[a] prisoner

normally proves actual knowledge of impending harm by showing that he complained

to prison officials about a specific threat to his safety.’” Gevas v. McLaughlin, 798 F.3d 475,

480 (7th Cir. 2015) (quoting Pope v. Shafer, 86 F.3d 90, 92 (7th Cir. 1996)); see also McGill v.

Duckworth, 944 F.2d 344, 349 (7th Cir. 1991). To support an inference that an official knew

of a substantial risk of harm, the inmate’s complaint to the official typically must identify

“a specific, credible, and imminent risk of serious harm.” Gevas, 798 F.3d at 481.

“[T]o infer callous indifference when an official fails to protect a prisoner from the

risk of attack, there must be a ‘strong likelihood’ rather than a ‘mere possibility’ that

violence will occur.” Estate of Davis v. Johnson, 745 F.2d 1066, 1071 (7th Cir. 1984). “[T]he

defendant must have known that the plaintiff ‘was at serious risk of being harmed [and]

decided not to do anything to prevent that harm from occurring even though he could

have easily done so.’” Board v. Farnham, 394 F.3d 469, 478 (7th Cir. 2005) (quoting

Armstrong v. Squadrito, 152 F.3d 564, 577 (7th Cir. 1998)).

Plaintiff’s allegation that Defendant Harrold heard his screams for assistance but

falsified that he sought to investigate is sufficient to state an Eighth Amendment failure

to protect claim against Harrold. However, Plaintiff does not state a claim against the

remaining defendants.

Plaintiff acknowledges that Defendants Carpentier and Novak were not present

during the assault but seeks to hold them liable for falsifying logbook entries that claim

they made tours of the area, which Plaintiff contends violates IDOC security policy.

However, merely failing to comply with IDOC policies or procedures without more does

not establish a constitutional violation. See Glisson v. Ind. Dep’t of Corr., 849 F.3d 372, 380

(7th Cir. 2017) (stating that a failure to follow departmental guidelines “in itself . . . does

not describe an Eighth Amendment violation”).

Similarly, Plaintiff does not state a claim against Defendants Little and McCune

for failing to investigate his grievance to Plaintiff’s satisfaction, absent an indication that

Little and McCune knew about the risks posed by Plaintiff’s cellmate beforehand. See

Miller v. Harbaugh, 698 F.3d 956, 962 (7th Cir. 2012) (concluding that to succeed on an

Eighth Amendment claim, a plaintiff must present evidence “that the defendants were

subjectively aware of the risks posed by [a prison condition] and that they recklessly

failed to take appropriate steps to alleviate that risk.”); see also Owens v. Godinez, 860 F.3d

434, 438 (7th Cir. 2017) (“[T]he mishandling of [an inmate’s] ‘grievances by persons who

otherwise did not cause or participate in the underlying conduct states no claim.’”)

(quoting Owens v. Hinsley, 635 F.3d 950, 953–54 (7th Cir. 2011)).

Despite identifying Defendant Baker, Plaintiff does not provide facts to infer Baker

committed a constitutional violation. See Collins v. Kibort, 143 F.3d 331, 334 (7th Cir. 1998)

(“A plaintiff cannot state a claim against a defendant by including the defendant’s name

in the caption.”); Kuhn v. Milwaukee Cnty., 59 Fed. Appx. 148, 150 (7th Cir. 2003) (“[M]erely

naming the prosecutors and Milwaukee County in the caption of her complaint was not

sufficient to state a claim against them.”).

II. Counsel and IFP Petition

Plaintiff moves for the recruitment of counsel. Plaintiff has no constitutional right

to counsel, and the Court cannot require an attorney to accept pro bono appointments in

civil cases. The most the Court can do is ask for volunteer counsel. See Jackson v. County

of McLean, 953 F.2d 1070, 1071 (7th Cir. 1992) (holding that although indigent civil litigants

have no constitutional right to counsel, a district court may, in its discretion, request

counsel to represent indigent civil litigants in certain circumstances). In considering

Plaintiff’s motion for counsel, the Court must ask two questions: “(1) has the indigent

plaintiff made a reasonable attempt to obtain counsel or been effectively precluded from

doing so; and if so, (2) given the difficulty of the case, does the plaintiff appear competent

to litigate it himself?” Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007).

The Court concludes that the recruitment of counsel at this early stage of the

proceedings is not warranted. As explained below, entry of the Court’s Merit Review

Order begins the service phase. After Defendant Harrold has been served and filed his

answers to Plaintiff’s Complaint, which usually takes sixty days, the Court will enter a

scheduling order to provide guidance and deadlines to assist Plaintiff during the

discovery process. Therefore, Plaintiff’s Motions for Counsel (Docs. 5, 16, 23) are denied.

On November 6, 2024, the Court granted Plaintiff’s IFP Petition (Doc. 3) and

assessed an initial partial filing fee of $29.24, which Plaintiff paid. Thus, Plaintiff’s

renewed IFP petition (Doc. 22) is moot.

IT IS THEREFORE ORDERED:

1) Plaintiff’s Motion for Leave to File a Second Amended Complaint (Doc. 21) is

GRANTED. The Clerk of the Court is DIRECTED to docket Plaintiff’s second

amended pleading and TERMINATE Tyrone Baker, Carpentier, Little, McCune,

and Novak as Defendants.

2) Plaintiff’s Motions for Counsel (Docs. 5, 16, 23) are DENIED.

3) Plaintiff’s IFP Petition (Doc. 22) is MOOT.

4) According to the Court’s merit review of Plaintiff’s complaint [1] under 28 U.S.C.

§ 1915A, Plaintiff has alleged enough facts to proceed with an Eighth

Amendment Failure to Protect Claim against Defendant Harrold. Any additional

claims shall not be included in the case, except at the Court’s discretion on

motion by a party for good cause shown or under Federal Rule of Civil Procedure

15.

5) This case is now in the process of service. The Court advises Plaintiff to wait

until counsel has appeared for Defendant before filing any motions to give

Defendant notice and an opportunity to respond to those motions. Motions filed

before Defendant’s counsel has filed an appearance will generally be denied as

premature. Plaintiff need not submit any evidence to the Court at this time

unless otherwise directed by the Court.

6) The Court will attempt service on Defendant by mailing Defendant a waiver of

service. Defendant has sixty days from service to file an Answer. If Defendant

has not filed Answers or appeared through counsel within ninety days of the

entry of this order, Plaintiff may file a motion requesting the status of service.

After Defendant has been served, the Court will enter an order setting discovery

and dispositive motion deadlines.

7) If Defendant no longer works at the address provided by Plaintiff, the entity for

whom Defendant worked while at that address shall submit to the Clerk said

Defendant’s current work address, or, if not known, said Defendant’s

forwarding address. This information shall be used only for effectuating service.

Documentation of forwarding addresses shall be retained only by the Clerk and

shall not be maintained in the public docket nor disclosed by the Clerk.

8) Defendant shall file an Answer within sixty days of the date the Clerk sends the

waiver. A motion to dismiss is not an answer. The answer should include all

defenses appropriate under the Federal Rules. The answer and subsequent

pleadings shall be to the issues and claims stated in this Order. In general, an

answer sets forth Defendant’s positions. The Court does not rule on the merits

of those positions unless and until Defendant files a motion. Therefore, no

response to the answer is necessary or will be considered.

9) This District uses electronic filing, which means that after Defendant’s counsel

has filed an appearance, Defendant’s counsel will automatically receive

electronic notice of any motion or other paper filed by Plaintiff with the Clerk.

Plaintiff does not need to mail to Defendant’s counsel copies of motions and

other documents that Plaintiff has filed with the Clerk. However, this does not

apply to discovery requests and responses. Discovery requests and responses are

not filed with the Clerk. Plaintiff must mail his discovery requests and responses

directly to Defendant’s counsel. Discovery requests or responses sent to the

Clerk will be returned unfiled unless they are attached to and the subject of a

motion to compel. Discovery does not begin until Defendant’s counsel has filed

an appearance, and the Court has entered a scheduling order, which will explain

the discovery process in more detail.

10) The Court grants Defendant’s counsel leave to depose Plaintiff at his place of

confinement. Defendant’s counsel shall arrange the time for the deposition.

11) Plaintiff shall immediately notify the Court, in writing, of any change in his

mailing address and telephone number. Plaintiff’s failure to inform the Court of

a change in mailing address or phone number will result in the dismissal of this

lawsuit with prejudice.

12) If Defendant fails to sign and return a waiver of service to the Clerk within thirty

days after the waiver is sent, the Court will take appropriate steps to effect formal

service through the U.S. Marshals service on that Defendant and will require that

Defendant to pay the full costs of formal service under Federal Rule of Civil

Procedure 4(d)(2).

13) The Court directs the Clerk to enter the standard qualified protective order under

the Health Insurance Portability and Accountability Act.

1) The Court directs the Clerk to attempt service on Defendant under the standard

procedures.

ENTERED June 20, 2025.

s/ Colleen R. Lawless

____________________________________

COLLEEN R. LAWLESS

UNITED STATES DISTRICT JUDGE