Omar v. Hughes

• Decision Date: 05 January 2016
• Docket Number: Case No. 15-cv-1301-SMY
• Court: U.S. District Court — Southern District of Illinois
• Parties: BASHIR OMAR, # N-61783 Plaintiff, v. ROBERT E. HUGHES, JASON N. HART, RICHARD HARRINGTON, JANE/JOHN DOES (IDOC & Menard) MICHAEL S. ROBESON, TARRY WILLIAMS, and MELISSA PHOENIX, Defendants.

BASHIR OMAR, # N-61783 Plaintiff, v. ROBERT E. HUGHES, JASON N. HART, RICHARD HARRINGTON,

JANE/JOHN DOES (IDOC & Menard) MICHAEL S. ROBESON, TARRY WILLIAMS,

and MELISSA PHOENIX, Defendants.

Case No. 15-cv-1301-SMY

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

January 5, 2016

MEMORANDUM AND ORDER

YANDLE, District Judge:

Plaintiff, currently incarcerated at Stateville Correctional Center ("Stateville"), has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. His claims arose while he was incarcerated in 2013 at Western Illinois Correctional Center ("Western") and Menard Correctional Center ("Menard"). They include allegations that he was beaten by Western officers and issued a false disciplinary report, deprived of shoes and nearly all clothing and denied due process in the disciplinary hearing which was held at Menard.

This case is now before the Court for a preliminary review of the complaint pursuant to 28 U.S.C. § 1915A. Under § 1915A, the Court is required 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).

The Complaint

While Plaintiff was incarcerated at Western on May 9, 2013, he was handcuffed, a chemical agent was sprayed in his eyes and he was beaten by Defendant Robeson and several other officers (Doc. 1, p. 5). He was then stripped of all his clothing and shoes and left naked in a segregation cell for a few hours. Defendant Williams (Warden of Western) saw Plaintiff'sclothing being removed and refused to do anything about it, even after Plaintiff asked him for help. Defendant Robeson "fabricated" a disciplinary report to cover up the attack on Plaintiff (Doc. 1, p. 6).

Plaintiff was transferred to segregation at Menard where he spent about six months with only a single jumpsuit to wear, no shoes and no underwear (Doc. 1, pp. 5-6, 9). Because he lacked shoes, he was unable to go to the segregation yard except for a few times when he was able to borrow shoes from his cellmate. Defendant Phoenix (Menard counselor) failed to remedy Plaintiff's complaint(s) over his lack of clothing and shoes and Jane/John Doe Defendant(s) falsely stated that he had been issued those items (Doc. 1, pp. 5-6).

The hearing on Defendant Robeson's disciplinary report was conducted at Menard by Defendants Hughes and Hart (Doc. 1, pp. 7-8; 31-32). Plaintiff was not properly served with a copy of the disciplinary report in advance of the hearing so he did not have sufficient opportunity to review the charges. He was unable to request witnesses and was not allowed to see the camera footage of the incident. The hearing was not held until May 27, 2013, which was outside the 14-day time frame provided in the prison rules. His exhibits include the Adjustment Committee's summary (Ticket # 201300710/1-MEN issued on May 9, 2013) showing that he was charged with "601.Attempt/102 - Assaulting Any Person-Staff," and "403 - Disobeying a Direct Order" (Doc. 1, p. 31).

Plaintiff pled not guilty to attempting to head-butt and kick Defendant Robeson, pointing out that he could not have done that while he was choking and blinded from the chemical agent sprayed on him (Doc. 1, p. 8). He told Defendants Hughes and Hart that Defendant Robeson and Lt. Fishel (who is not a party to this suit) each wrote him a disciplinary ticket to cover up the beating they inflicted on Plaintiff. Defendants Hughes and Hart disregarded Plaintiff's evidenceand found him guilty based only on the issuing officer's statement in the disciplinary ticket (Doc. 1, p. 9). According to the report, Plaintiff was punished with one year in segregation as well as other sanctions (Doc. 1 p. 31).

Plaintiff further complains that he was subjected to double or triple punishment by being issued duplicate tickets for the same incident (Doc. 1, p. 10). He attaches the Adjustment Committee's report on the charges initiated by Lt. Fishel (Ticket # 201300699/1-MEN also issued on May 9, 2013) (Doc. 1, pp. 33-34), which shows that Plaintiff was charged with 102-Assault and 403-Disobeying an Order after Lt. Fishel searched Plaintiff and was poked in the finger by a pencil in Plaintiff's pocket. According to the report, Plaintiff demanded the pencil back, became combative when he was ordered to return to his cell without the pencil and struck Lt. Fishel in the eye while Lt. Fishel tried to restrain him. Staff sprayed Plaintiff with a chemical aerosol to subdue him (Doc. 1, p. 33). The hearing on these charges was conducted at Menard on May 17, 2013 by Officers Veath and Johnson (Doc. 1, p. 34). Plaintiff was found guilty and punished with one year in segregation and three months of his good conduct credits were revoked (Doc. 1, p. 34).

Defendant Harrington (Menard Warden) approved the imposition of punishment recommended by Defendants Hughes and Hart on the ticket issued by Defendant Robeson. The John/Jane Doe Defendant(s) Library Staff intentionally delayed sending Plaintiff's grievance over the disciplinary action which prevented him from using that process to obtain review. Other Jane/John Doe Defendants (of Menard Clinical Services, Supervisor and Grievance Officer) either held or disregarded all of Plaintiff's grievances filed over the claims herein (Doc. 1, pp. 11-12).

Plaintiff raises an Eighth Amendment claim that the denial of clothing and shoesamounted to cruel and unusual punishment. He asserts that he was denied due process and equal protection in the disciplinary hearing over the ticket issued by Defendant Robeson. Finally, he claims he was denied access to the courts because his evidence was not investigated or preserved (Doc. 1, pp. 12-13). He seeks damages as well as injunctive relief including the expungement of Defendant Robeson's disciplinary ticket (Doc. 1, p. 14).

Merits Review Pursuant to 28 U.S.C. § 1915A

Based on the allegations of the complaint, the Court finds it convenient to divide the pro se action into the following counts. 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. The designation of these counts does not constitute an opinion as to their merit. Any other claim that is mentioned in the complaint but not addressed in this Order should be considered dismissed without prejudice.

Count 1: Claims under the Eighth and Fourteenth Amendments against Defendant Robeson (Western), for assaulting Plaintiff, issuing him a false disciplinary ticket, and failing to obtain medical attention for his injuries;

Count 2: Eighth Amendment claim against Defendant Williams (Western) for failing to provide Plaintiff with clothing or shoes while he was in segregation at Western;

Count 3: Eighth Amendment claim against Defendant Phoenix (Menard) and Jane/John Doe Menard Defendants, for subjecting Plaintiff to unconstitutional conditions of confinement, in that they failed to provide him with shoes or sufficient clothing for approximately six months;

Count 4: Fourteenth Amendment claim against Defendants Hughes and Hart, for depriving Plaintiff of a liberty interest without due process when they punished him with one year in segregation after failing to follow proper procedures in his disciplinary hearing;

Count 5: Claims against John/Jane Doe Menard Defendants, for delaying or disregarding Plaintiff's grievances and denying him access to the courts.

Counts 1 and 2 shall be dismissed from this action without prejudice as they involve incidents that did not occur within this judicial district and are duplicative of a pending action brought by Plaintiff in the Central District of Illinois. Count 3 survives threshold review and shall proceed for further consideration in this action. Counts 4 and 5 shall be dismissed for failure to state a claim upon which relief may be granted.

Dismissal of Counts 1 & 2 - Defendants Robeson & Williams

Before bringing the instant lawsuit, Plaintiff filed an action in the Central District of Illinois based largely upon the same incidents he describes herein: Omar v. Robeson, et al., Case No. 15-cv-3130 (C.D. Ill. filed April 30, 2015). Upon initial review, the Court explained to Plaintiff that his claims against the Menard Defendants (as well as other claims arising from his incarceration at Pontiac Correctional Center) could not proceed in the same lawsuit as his claims...