Del Raine v. Williford
| Decision Date | 09 August 1994 |
| Docket Number | No. 92-1542,92-1542 |
| Citation | 32 F.3d 1024 |
| Parties | Ronald DEL RAINE, Plaintiff-Appellant, v. Jerry T. WILLIFORD, Warden, United States Penitentiary, Marion, Illinois; Norman A. Carlson, Director, Federal Bureau of Prisons; Harold G. Miller, Former Warden, United States Penitentiary, Marion, Illinois; Kip Dillow; Patrick W. Keohane; John Brush; J.D. Lamer; Randel Burlison; Dr. Robert Denton, Carl S. Deer, Davis Whitaker (formerly P. Whitaker); Thomas J. Gora, L. Edwards, Charles Sansom, Jon Michael Moralez, Michael B. Walker, John Sullivan, John L. Clark, Larry Morrison, Joseph Sively, Thomas V. Krajenta, L. Sheffer, Guy Barker, T.R. Trusty, Gary Thompson, P. Pool, Steve R. Thomas, Lieutenant Wertenberger, D. Williams, Steve Pysher, John Doe I, John Doe II, Gary French (formerly known as John Doe III), and John Doe IV, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Howard B. Eisenberg, Little Rock, AR (argued), for plaintiff-appellant.
Laura J. Jones, Asst. U.S. Atty., Crim. Div., Fairview Heights, IL, Christopher K. Wells, Asst. U.S. Atty. (argued), Benton, IL, for defendants-appellees.
Before RIPPLE and MANION, Circuit Judges, and SHARP, District Judge. 1
This is a prisoner civil rights case filed under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). The district court had jurisdiction under 28 U.S.C. Secs. 1331 and 1343. The plaintiff-appellant ("appellant"), Ronald Del Raine, is and has for a long time been an inmate at the United States Penitentiary at Marion, Illinois ("Marion"). In November, 1984, the appellant filed a complaint in the Southern District of Illinois listing nineteen employees of the Marion facility as defendants. The appellant listed sixteen of the defendant-appellees specifically by name and three defendant-appellees were listed as "John Doe" # 1, # 2 and # 3. The Federal Bureau of Prisons "locked down" the federal prison at Marion in 1983 and it has remained so, which has spawned a variety of decisions in the district court and here. See Bruscino v. Carlson, 654 F.Supp. 609 (S.D.Ill.1987), aff'd, 854 F.2d 162 (7th Cir.1988), cert. denied, 491 U.S. 907, 109 S.Ct. 3193, 105 L.Ed.2d 701 (1989); Miller v. Henman, 804 F.2d 421 (7th Cir.1987), cert. denied, 484 U.S. 844, 108 S.Ct. 136, 98 L.Ed.2d 93 (1987); Campbell v. Miller, 787 F.2d 217 (7th Cir.1986), cert. denied, 479 U.S. 1019, 107 S.Ct. 673, 93 L.Ed.2d 724 (1986).
The appellant also filed an Amended Complaint asserting several more claims against a plethora of defendants including numerous additional prison employees not previously named in the original Complaint. There were procedural complications caused by the appellant's Amended Complaint. On September 23, 1985, the appellant filed a motion with the district court requesting the opportunity to be allowed to file a "composite" amended complaint. The appellant taped his amended handwritten allegations onto appropriate locations on the original typewritten Complaint, which had been cut apart and then entirely photocopied.
Additionally, there were service of process complications in this matter, which were exacerbated by the Amended Complaint. On June 9, 1986, Chief Judge Foreman upheld the Magistrate Judge Meyers' recommendation on this issue. Specifically, Chief Judge Foreman indicated that the appellant's effort to obtain service on April 12, 1986, was effectuated after the 120 day limit for service in light of the filing date of the Amended Complaint. On this issue, Judge Foreman indicated that no good cause existed for late service. Specifically, he explained:
Plaintiff's original complaint was filed on November 2, 1984, and on November 4 1985, plaintiff filed an amended complaint, in which he named several new defendants. Neither these defendants nor certain others originally named were ever served. The Magistrate held that because plaintiff failed to serve the defendants within 120 days of the filing of the complaint, as required by Rule 4(j) of the Federal Rules of Civil Procedure, those defendants should be dismissed without prejudice from the instant suit.
Plaintiff contends that on April 12, 1986, he mailed sixteen typed amended complaints, along with the United States Marshal Forms (U.S.M.-285 forms), to the United States Marshal's Office for service upon defendants. The sixteen complaints were returned by the Clerk's office because the submitted copies did not match the original amended complaint in the Court's file. (Apparently, the Court's copy was partially typed, and the copies submitted by plaintiff for service were completely typed.) Although plaintiff attempted to serve defendants on April 12, 1986, this was nevertheless more than 120 days after the filing of the amended complaint. Plaintiff has not shown good cause why service was not made within the required period, and the Court therefore agrees with the Magistrate that defendants Brush, Deer, Denton, Gora, Edwards, Sansom, John Doe Guards, Sullivan, Clark, Morrison, Sively, Krajenta, Sheffer, Barker, Wertenberger, Williams, John Doe No. 4, Pysher, Thompson, Pool and Thomas should be dismissed without prejudice from the instant suit. The Court also finds that because defendant Trusty was never served, he should likewise be dismissed without prejudice.
See Brief and Appendix of Plaintiff-Appellant at Appendix 21-22.
On June 25, 1986, Magistrate Judge Meyers ruled on the defendant-appellees' motion to dismiss or for summary judgment. 2 In so doing, the Magistrate Judge resolved several issues. This court notes that it is helpful to discuss the specific defendant-appellee, the allegations, and the disposition of the district court concurrently. The appellant asserted an Eighth Amendment claim against defendant-appellee Harold G. Miller, the Warden at Marion during the lockdown, insofar as Miller failed to repair the windows in his cell block. In dismissing this claim, the Magistrate Judge explained that these allegations were not unconstitutional because the cold did not endanger the appellant's health and was merely uncomfortable. The Magistrate Judge further found that Miller could not be found liable under the doctrine of respondeat superior for supervising other defendant-appellees who may have violated the appellant's constitutional rights.
The Magistrate Judge also dismissed the action as to defendant-appellee Norman Carlson (Director, Federal Bureau of Prisons). The Magistrate Judge found that Carlson's supervision of prison employees did not constitute a constitutional violation. The Magistrate Judge also dismissed the appellant's claim against defendant-appellee Jerry Williford (Miller's successor as Warden at Marion) and defendant-appellee Patrick Keohane for the same reasons. Additionally, the Magistrate Judge dismissed defendant-appellee Randel Burlison (correctional officer). Finally, the Magistrate Judge evaluated the appellant's allegation that defendant-appellee Davis Whitaker (correctional officer) confiscated two dictionaries and other property. On this issue, the Magistrate Judge explained that because this claim could be pursued under the Federal Tort Claims Act, 28 U.S.C. Sec. 2671 et seq. it could not be asserted in a Bivens action. Therefore, the Magistrate Judge dismissed this claim.
The Magistrate Judge refused to dismiss or grant summary judgment on the appellant's Eighth Amendment claim against Kip Dillow and the appellant's First Amendment claim against Warden Williford. The appellant attempted unsuccessfully to appeal the dismissal of the other claims, but this Court dismissed the appeal for lack of finality.
On September 15, 1988 Magistrate Judge Frazier evaluated the Eighth Amendment rectal search issue and explained:
The documents indicate that on November 7, 1983, plaintiff was suspected of concealing contraband. Warden Miller and Regional Director ... Ralston authorized Dillow to administer x-rays and a rectal probe of the plaintiff. Dillow does not recall the reason for the suspicion and was not responsible for investigating the reason for the search. Dillow did not authorize the searches and cannot perform rectal searches without prior administrative authorization.
To the extent that plaintiff protests the propriety of the authorization of the searches, summary judgment should be entered in favor of defendant Dillow, as it is undisputed that he was not personally involved in the assessment of the suspicion against plaintiff or the decision to authorize the rectal and x-ray procedures.
Id. Brief and Appendix of Plaintiff-Appellant at Appendix 13-14. Additionally, the Magistrate Judge denied summary judgment on the appellant's Eighth Amendment claim that defendant-appellee Dillow performed the rectal search in an unprofessional manner. This issue went to trial. Following the submission of the appellant's case to the jury, the Magistrate Judge granted a directed verdict for the defendant-appellee finding that although the rectal search may have been "an unpleasant, uncomfortable, and degrading experience," absent some evidence that defendant-appellee Dillow "gratuitously inflicted pain for the purpose of causing harm," no constitutional deprivation was involved. Id.
The Magistrate Judge also determined that Warden Williford had a proper basis for prohibiting the appellant from receiving two issues of a publication entitled The Marionette. In so doing, the Magistrate Judge granted summary judgment in favor of Williford as to those publications; however, the Magistrate Judge denied a similar motion for purposes of another publication entitled A New Iron Column. On this issue, the defendant-appellee, Williford, appealed and this court ruled that the defendant-appellee was entitled to qualified immunity. See Del Raine v. Williford, 952 F.2d 405 (7th Cir.1992) (unpublished order)....
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