Bardo v. Stolworthy, Case No. 15-cv-1193-JPG
| Decision Date | 30 November 2015 |
| Docket Number | Case No. 15-cv-1193-JPG |
| Parties | CLIFTON BARDO, # B-20945, Plaintiff, v. DONALD STOLWORTHY, AUSTIN THOMAS, SANDRA FUNK, JOSEPH SHREVE, LT. BURTON, and DEBORAH S. ZELASKO, Defendants. |
| Court | U.S. District Court — Southern District of Illinois |
Plaintiff, currently incarcerated at Western Illinois Correctional Center ("Western"), has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. His claims arose while he was incarcerated at Centralia Correctional Center ("Centralia") and at Pinckneyville Correctional Center ("Pinckneyville"). Plaintiff is serving a 24-year sentence for a drug offense. This case is now before the Court for a preliminary review of the complaint pursuant to 28 U.S.C. § 1915A , which requires the Court to dismiss any claims that are frivolous, malicious, fail to state a claim on which relief may be granted, or seek monetary relief from an immune defendant.
An action or claim is frivolous if "it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). Frivolousness is an objective standard that refers to a claim that "no reasonable person could suppose to have any merit." Lee v. Clinton, 209 F.3d 1025, 1026-27 (7th Cir. 2000). 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." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The claim of entitlement to relief must cross "the line between possibility and plausibility." Id. at 557. Conversely, a complaint is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although the Court is obligated to accept factual allegations as true, see Smith v. Peters, 631 F.3d 418, 419 (7th Cir. 2011), some factual allegations may be so sketchy or implausible that they fail to provide sufficient notice of a plaintiff's claim. Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). Additionally, Courts "should not accept as adequate abstract recitations of the elements of a cause of action or conclusory legal statements." Id. At the same time, however, the factual allegations of a pro se complaint are to be liberally construed. See Arnett v. Webster, 658 F.3d 742, 751 (7th Cir. 2011); Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).
Applying these standards to Plaintiff's complaint, a number of his claims are subject to dismissal, but some shall proceed for further review.
In addition to the six Defendants listed in the caption (who are included on the Court's docket sheet), Plaintiff lists ten other Defendants2 whose names were apparently overlooked when the case was opened, due to Plaintiff's cramped handwriting and the poor quality of the copy (Doc. 1, p. 2). However, he mentions only some of these individuals in his statement of claim. Additionally, the statement of claim describes actions or omissions of five other individuals,3 but Plaintiff failed to name them as Defendants, either in his list of parties or in his prayer for relief.
Plaintiff included 96 pages of exhibits with his complaint (Docs. 1-1, 1-2, 1-3, 1-4, and 1-5). Voluminous exhibits such as these are discouraged at the preliminary review stage. The Court shall analyze Plaintiff's claims based on the factual allegations contained in the 16-page complaint, and shall refer to certain exhibits only where necessary or helpful for clarification.
Plaintiff begins his narrative with the claims that his due process rights were violated by Defendants Johnson and Burton at Centralia, who found him guilty of two disciplinary reports (Doc. 1, p. 5). The first report, issued May 19, 2014, was based on Plaintiff's braided hairstyle, which allegedly violated a prohibition against gang-related symbols (Doc. 1-1, p. 5). The Adjustment Committee, made up of Defendants Johnson and Burton, found Plaintiff guilty of the infraction and punished him with two months of demotion to C-grade, two months of yard/gym denial, and six months of restriction on contact visits. After Plaintiff filed a grievance, this disciplinary matter was remanded in December 2014 for a re-hearing, because due process safeguards were not followed (Doc. 1-1, p. 8). Defendant Warden Austin told Plaintiff that his visitation rights would be restored, but this was not done, and a new hearing on the charges was not held within the 90-day time limit. A new hearing was eventually conducted on April 5, 2015, by Defendant Shreve. He refused to call Plaintiff's witnesses, and imposed the same punishment because Plaintiff had already served the time on the infractions. The disciplinary violation remained on his record and was not expunged as Defendant Austin said it should have been (Doc. 1, pp. 5-6; see also Doc. 1-5, p. 8).
Plaintiff was charged with a second disciplinary violation on March 15, 2015, for improper conduct with a visitor (Doc. 1-2, p. 13). Defendants Johnson and Burton again served on the Adjustment Committee. They failed to call Plaintiff's witnesses, incorrectly stated on the hearing summary that Plaintiff had pled guilty to the offense, and failed to read his written statement. They found him guilty, and informed him they would recommend him for a disciplinary transfer because of the first (hairstyle) disciplinary action. This time, Plaintiff was punished with two months in segregation as well as two months of C-grade and gym/yard denial.
In March 2015, Plaintiff was denied a visitor even though he was supposed to be allowed non-contact visits at that time (Doc. 1, p. 6). Defendant Zelasco (counselor) has "sided against" Plaintiff on his grievances over the disciplinary action, and interfered with the procedure that such grievances are to go directly to the grievance officer (Doc. 1, p. 7).
Plaintiff further complains that his outgoing mail is not being delivered to the recipients, and his incoming mail is being returned to the senders (Doc. 1, p. 7). Property has been stolen from him and he has not been reimbursed. Id. He does not identify any Defendant or other individual who may have been responsible for these problems.
Defendant Lt. Johnson and C/O Snyder4 have made threats and unprofessional comments to Plaintiff. Some of Defendant Johnson's harassment and threats took place on March 17 and 18, 2015, while Plaintiff was on suicide watch and conducting a hunger strike. Plaintiff claims Defendant Johnson's actions interfered with his mental health treatment; he states that he was seen by a mental health provider once a week (Doc. 1, p. 7). Further, he believes Defendants Johnson and Burton have a grudge against him and have retaliated against him, as demonstrated by their imposition of "harsh penalties" against Plaintiff on the two disciplinary matters (Doc. 1, p. 8).
On April 22, 2015, Plaintiff was transferred from Centralia, with an ultimate destination of Western Illinois Correctional Center. However, he was briefly housed at Pinckneyville before being transported to Western. When he was directed to the Pinckneyville bus, Plaintiff informed the C/O that he was "not allowed" at Pinckneyville because of a lawsuit he had filed against a C/O there in 2002, but he was sent there anyway.
Plaintiff was awakened the next morning at Pinckneyville when Defendant Wanack, C/O Walls,5 and an unidentified officer (Defendant John Doe #1) beat on his cell door. Defendant Wanack yelled, "Nigger, we're gonna beat your ass . . . we're gonna kill you, get up [and] come here" (Doc. 1, p. 8). He continued to threaten Plaintiff's life, and told Plaintiff he should hang himself, instructing him how to accomplish this. He told Plaintiff that he and C/O Walls were fixing him a "real nice meal to eat" (Doc. 1, p. 9). Plaintiff requested the crisis team and reported this incident; the counselor assured him he would leave in the morning and nothing would happen to him.
Soon thereafter, Defendant Wanack and C/O Walls returned; Walls opened the cell door and Wanack threw Plaintiff's food tray on the floor. Plaintiff reported this incident as well, and was evaluated by a mental health counselor. He gave the names of the officers to an Internal Affairs representative, and told him he was in great fear for his life. These officials never followed up to provide Plaintiff with a food tray or check on his welfare. Defendant Wanack returned at 2:45 p.m. to say that he would be waiting on Plaintiff when he got out, and he would not kill him now because he was on his way home.
On April 24, 2015, Plaintiff was to be transferred from Pinckneyville to Western. Defendants Wrangler and C/O John Doe #2 refused to feed Plaintiff breakfast before he left Pinckneyville. Defendant Wrangler said, "That's the nigger and he won't eat while I'm here," adding that Plaintiff would never eat again if it was up to him (Doc. 1, p. 10). Lt. Lively6 and John Doe C/O's #2, #3, and #4 took Plaintiff to the shower for a shakedown, where they forced him to spread his buttocks and remain in that position for more than two minutes in front of this group of officers. He was then taken to the core hallway, where Defendant Wrangler, Lt. Lively, and Defendant John Doe C/O's #2, #3, #4, #5, and #6 were present; Defendant Jane Doe was working in the control booth. Defendant Wrangler told Plaintiff he was "calling his boys in Western to let them know that [Plaintiff] was coming and to get him for us." Id. The other officers "replied yea in agreement." Id. When Plaintiff arrived at Western, an unknown C/O told him that they received a phone call on him and were waiting on him.
On May 1, 2015, Plaintiff had a hearing at Western on another disciplinary ticket that had been issued at Centralia, in which C/O Snider7 stated that Plaintiff refused to remove the braids...
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