envelopes for legal mail, he has been turned away from the law library, and he has been denied
telephone calls.

Defendants have moved to dismiss the complaint for failure to state a claim. Defendants
first argue that Plaintiff's allegations of verbal abuse do not state a claim because claims of
emotional or mental distress are not cognizable without a showing of some physical injury.
Defendants further argue that Plaintiff has an adequate state law remedy regarding confiscation
of his personal property, because he may file claims with the Hlinois Court of Claims to obtain
relief. Defendants also maintain that they are entitled to qualified immunity because Plaintiff
has failed to state a violation of his constitutional rights,

Defendants further argue that Plaintiff has failed to state valid claims against Defendants
Baird, Ferris and Hernandez in either their individual or official capacities. Defendants
additionally contend that Plaintiff's claims are time-barred because he does not state the dates
on which any of the events at issue occurred, and that he has failed to exhaust all administrative
remedies, by not including the relevant dates to support his compliance with the established jail
grievance procedure. Finally, Defendants assert that Plaintiff has failed to properly serve
several named Defendants, due to insufficient information provided by Plaintiff, and, therefore,

the Court should dismiss them from the complaint?

3 By the Court’s order of August 30, 2004, Plaintiff was given until September 27, 2004, to
answer the motion to dismiss, or this court would rule without benefit of Plaintiff's views. Furthermore,
Plaintiff had until that same date to provide more information so that defendants Tubemvoll, Lopez, and
Perez may be properly served. He failed to do either. Thus those defendants are dismissed.

4


be taken in retaliation to allow defendants to properly respond to complaint). Because Plaintiff
has made only vague references to grievances he has filed, without specifying which grievance
was the basis for the retaliation, what the retaliation was, or even identifying which Defendant
Tetaliated, he has failed to state a claim for relief on the retaliation claim. Plaintiffs remaining
claim that Defendants threatened him, without more, fails.
Vv. Interference with Plaintiff's Mail

Plaintiff alleges that certain Defendants interfered with his attempts to send mail, and
that ten stamped envelopes were taken from him. Detainees have First Amendment rights to
send and receive mail. See Rowe v. Shake, 196 F.3d 778, 782 (7" Cir. 1999). Mere allegations
of temporary disruptions in sending out inmates’ mail generally do not support a cause of action
grounded upon the First Amendment. See id. Plaintiff has not pled that Defendants
continuously and regularly interfered with his ability to send mail outside of the jail. Castillo v.
Cook County Mail Room Dept., 990 F.2d 304, 306 (7" Cir. 1993). Additionally, interference
with the transmission of Plaintiff’s legal mail violates that right only if it is deliberate and
impedes access to the courts. See Kinkaid v. Wail, 969 F. 2d 594, 602 (7" Cir. 1992); Gentry v.
Duckworth, 65 F.3d 555, 558 (7" Cir. 1995). Plaintiff does not allege that any legal mail was
involved. Plaintiff, therefore, has not alleged a deprivation of any constitutional right with
respect to Defendants’ alleged failure to send his mail.

Finally, Plaintiff alleges that Defendants took several stamped envelopes from him.
Intentional deprivations of inmates’ property do not violate the due process clause if adequate
state post-deprivation remedies are available. See Hudson v. Palmer, 468 U.S. 517, 533 (1984).

Plaintiff has an adequate state law remedy — he may file a tort suit in the Illinois Court of


state law, and that the applicable Illinois statute sets a two-year time limit for filing such a
complaint. See Henderson v. Bolanda, 253 F.3d 928, 931 (7"" Cir. 2001), Statute of limitations
defenses, however, are frequently inappropriate for resolution on a motion to dismiss because
their application often depends upon factual determinations. Johnson Controls, Inc. vy. Exide
Corp., 129 F. Supp. 2d 1137, 1142 (N.D. Ill. 2001), Ifa plaintiff alleges facts that show that his
action is time-barred, however, he may plead himself out of court. id. All reasonable inferences
must be drawn in plaintiffs' favor when a defendant seeks a dismissal because the claim is
time-barted. Cornfield by Lewis v. Consolidated High Sch. Dist. No. 230,991 F.2d 1316, 1324
(7" Cir. 1993). Although Plaintiff has not stated the dates on which any of the incidents in
question occurred, the Court cannot conclude as a matter of law at this stage that his claims are
time-barred.
Ill. Psychological Oppression Claim

Defendants assert that Plaintiff’s claim of “psychological oppression” does not state a
cognizable constitutional violation, absent an allegation of some accompanying physical injury.
See 42 U.S.C. § 1997e(e); Zehner v. Trigg, 133 F.3d 459, 461 (7” Cir. 1997). Plaintiff has not
claimed that he has suffered any physical injury as a result of Defendants’ threats or other
actions. Plaintiff's complaint, however, is based on Defendants’ retaliation against him for the
exercise of his First Amendment rights. Such a claim does not require an allegation of physical
injury. See Calhoun v. DeTella, 319 F.3d 936, 940 (7" Cir, 2003) (deprivation of the First
Amendment right is itself a cognizable injury, regardless of any resulting mental or emotional

injury) (internal citations omitted).


ANALYSIS
I. Exhaustion of Administrative Remedies

According to 42 U.S.C. § 1997e(a), “[nJo action shall be brought with respect to prison
conditions under section 1983 of this title . . . by a prisoner , . . until such administrative
remedies as are available are exhausted.” 42 U.S.C. § 1997e(a); see Porter v. Nussle, 536 U.S.
516 (2002); Massey v. Helman, 259 F.3d 641 (7 Cir. 2001); Johnson v. Litscher, 260 F.3d 826
(7" Cir. 2001). Plaintiff alleges that he did exhaust available administrative remedies. He
claims that he has written grievances and spoken to different sergeants about his complaints.
Defendants contend that Plaintiff has not established compliance with the jail’s established
grievance procedure because he did not provide the dates on which he filed grievances and the
dates on which he appealed unsatisfactory decisions.

The Court may dismiss a complaint for failure to exhaust administrative remedies if the
failure to exhaust is so clear from the face of the complaint that its filing is “frivolous.” Walker
v. Thompson, 288 F.3d 1005, 1011-12 (7" Cir. 2002). Failure to exhaust is normally an
affirmative defense that the defendant has the burden of pleading and proving. See Massey, 196
F.3d at 735 (internal citations omitted). At this stage of the proceedings, Plaintiff need only
plead that he has complied with the jail’s internal grievance procedure. MCM Partners, 62 F.34
at 972. Plaintiff has made such an allegation, and the Court must accept this allegation as true.
Because at this stage of the litigation there is no evidence before the Court to clarify the
exhaustion issue, the Court cannot conclude that Plaintiff has failed to exhaust his claims.

118 Statute of Limitations

Defendants correctly argue that time limits applicable to § 1983 actions are governed by


DeWalt, 224 F. 3d at 612; Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9" Cir. 1987) (verbal
threats or abuse do not rise to the level of constitutional violations cognizable under § 1983);
Martin v. Sargent, 780 F.2d 1334, 1338 (8" Cir. 1985) (allegations of verbal threats and name
calling do not amount to constitutional violations actionable under § 1983); McFadden v.
Lucas, 713 F.2d 143, 147 (5" Cir.1983) (prisoner confronted with 22 officers armed with sticks
and acting in threatening manner did not, absent physical abuse, state a constitutional violation);
Collins v. Cundy, 603 F.2d 825 (10" Cir. 1979) (allegation that Sheriff threatened to hang
prisoner does not state a claim under § 1983). On the other hand, if Defendants, engaged in
otherwise permissible conduct in order to retaliate against Plaintiff for exercising his First
Amendment rights, he could state a claim for relief. See, e.g. Zimmerman, 226 F.3d at 573.
Plaintiff alleges that Captain Milka — not a named Defendant — placed him in solitary
confinement after he filed various grievances. Because he did not sue the Captain, this claim is
not included in the case. Without specifically giving names, he further states that certain
Defendants wrote false complaints about him in response to his grievances, but he never gives
any further information related to this claim. The only related allegation Plaintiff makes is that
Defendants tried unsuccessfully to have a social worker write up a “phoney” report on him.
Further, Plaintiffs complaint fails to identify any specific exercise of his constitutional
rights that led to any punitive action by Defendants. Even under the liberal pleading standards
afforded pro se plaintiffs, a plaintiff still must identify the protected conduct leading to
defendants’ retaliation. See Walker, 288 F.3d at 1011-12 (plaintiff must state at least the
grievance or suit leading to the retaliation and the acts constituting retaliatory conduct); Higgs,

286 F.3d at 439 (plaintiff must specify both his own protected conduct and the acts claimed to


y

Minute Orde? Form (06/97)

ly

United States District Court, Northern District of Illinois

Name of Assigned Judge Amy J. St. Eve Sitting Judge if Other
or Magistrate Judge ° than Assigned Judge
CASE NUMBER 04 C 3196 DATE 10/12/2004
CASE Duncan vs. Dir CCDOC
TITLE
[10 the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.)
DOCKET ENTRY:
q) o Filed motion of { use listing in “Motion” box above.]
(2) im} Brief in support of motion due
@) a Answer brief to motion due. . Reply to answer brief due.
(4) a Ruling/Hearing on set for at
(5) a Status hearing[held/continued to} [set for/re-set for} on set for at
(6) ia) Pretrial conference[held/continued to] [set for/re-set for] on set for at
(7) a Trial[set for/re-set for]on_ at.
(8) QO (Bench/Jury trial] [Hearing] held/continued to at
(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) (OlLocal Rule 41.1 OFRCP41(a)(1) OO FRCP41(a)(2).
(ao) =f {Other docket entry} Enter Memorandum Opinion and Order. Defendants’ motion to dismiss the complaint
is granted. Status hearing set for 12/3/04 is stricken. Any other pending dates are stricken.
al) ff [For further detail see order attached to the original minute order.]
No notices required, advised in open court.
No notices required. amber of ntces
Notices mailed by judge’s staff. oct 14 208
Notified counsel by telephone. date docketed
wv | Docketing to mail notices. NAN
¥_} Mail AO 450 form vasag eames ockeuing deputy intats
Copy to judge/magistrate judge. io
courtroom wy OO HAZ dave mailed notice
TH deputy’s
initials

Date/time received in. 3
central Clerk’s Office smiling deputy intals



their individual or official capacities. The Court agrees.

Ina § 1983 case, a supervisor cannot be held personally liable for a constitutional
deprivation unless he or she caused or participated in the violation. See Boyce v. Moore, 314
F.3d 884, 888 (7" Cir. 2002) (internal citations omitted). The supervisor must knowingly,
willfully, or at least recklessly cause the violation by her actions or lack thereof. Moore v.
Indiana, 999 F.2d 1125, 1129 (7" Cir. 1993) (internal citations omitted), Even viewing the
complaint in the light most favorable to Plaintiff, he does not allege that Defendant Baird caused
or participated in any of the alleged violations. Therefore, Baird, in her individual capacity, is
dismissed from the complaint.

Regarding Sergeants Ferris and Hernandez, Plaintiff claims that he told them about
various threats that Lopez and Perez made to him, and about problems with his mail. He alleges
that they basically told him to forget about the complaints. Ferris and Hernandez can be liable
as supervisors only if the alleged deprivations were constitutional violations and that they
occurred at their direction or with their knowledge and consent, Gentry v. Duckworth, 65 F.3d
555, 561 (7" Cir. 1995), cited in Zentmeyer v. Kendall County, 220 F.3d 805, 812 (7° Cir.
2000). Plaintiff's allegations are insufficient to establish Ferris’ or Hernandez’ personal
involvement in any constitutional violations. Thus, Plaintiff has failed to state a claim against
these supervisory defendants.

In a § 1983 claim, in order to prevail on an official capacity suit against government
officials, a plaintiff must show that an official custom or policy caused his injuries. See Perkins
v. Lawson, 312 F.3d 872, 875 (7" Cir. 2002) (citing City of St. Louis v. Praprotnik, 485 U.S.

112 (1988)). Plaintiff must point to either an express policy which caused the injury, or a

at


Claims. Stewart v. McGinnis, 5 F.3d 1031, 1035-36 (7" Cir, 1993). Because of this available
state law remedy, Plaintiff has failed to state a claim for property deprivation.
VI. Denial of Medical Care

Plaintiff alleges that Defendants ignored his doctor’s orders, which restrict him from
using the stairs or lifting heavy objects. He also states that Defendants have said that they do
not care if he is disabled. He does not claim that he has suffered any injury due to Defendants’
actions,

In order to establish a claim of inadequate medical care, a plaintiff must show that he
suffers from a serious medical condition, and that defendants were deliberately indifferent to the
condition. See Gutierrez v. Peters, 111 F.3d 1364, 1375 (7" Cir. 1997). Deliberate indifference
has both an objective and a subjective element: the inmate must have an objectively serious
medical condition, and the health care provider must be subjectively aware of and consciously
disregard a risk to the inmate’s health or safety. Farmer v. Brennan, 511 U.S. 825, 837 (1994);
Sherrod v. Lingle, 223 F.3d 605, 610 (7" Cir. 2000). In the instant case, Plaintiff has not
specifically stated what type of injury or condition he suffers from, only that he is disabled in
some way. Furthermore, he has not alleged that he has been refused medical care when
requested. He has not alleged that he suffers from a serious medical condition, nor that
defendants were deliberately indifferent to his medical needs. Thus, Plaintiff has failed to state
a claim for relief related to medical care.

VII. Official and Individual Capacity
Defendants also argue that the Court should dismiss Baird, Ferris and Hernandez from

the suit because Plaintiff has failed to alleged any facts demonstrating their liability in either

10


IV. Retaliation Claim

It is well-established that “otherwise permissible conduct can become impermissible
when done for retaliatory reasons.” Zimmerman y, Tribble, 226 F.3d 568, 573 (7" Cir. 2000).
These fundamental rights include an inmate’s First Amendment right to file grievances. See
DeWalt v. Carter, 224 F.3d 607, 618 (7" Cir. 2000). In retaliation claim, it is not a
defendant’s action alone that leads to a constitutional violation. Rather, it is the retaliatory
motive behind the action. See Babcock v. White, 102 F.3d 267, 275 (7" Cir. 2000) (retaliation
claim may exist even if defendant’s actions do not independently violate the Constitution)
(internal citations omitted).

Thus, to the extent that Plaintiff claims that Defendants retaliated against him for filing
grievances, his First Amendment rights are implicated. Babcock, 102 F. 3d at 275. See also
DeWalt, 224 F.3d at 618. All that a plaintiff must specify in a retaliation complaint is the bare
minimum of facts necessary to put a defendant on notice of the claim so that an answer may be
filed. Higgs v. Carver, 286 F.3d 437, 439 (7” Cir. 2002), citing Beanstalk Group, Inc. v. AM
General Corp., 283 F.3d 856, 863 (7" Cir. 2002). This generally requires that a plaintiff
identify his own protected conduct with some specificity, as well as the act of retaliation by jail
officials. Jd. (internal citations omitted).

Plaintiff alleges generally that certain Defendants retaliated against him by threatening to
file disciplinary reports against him, and by threatening to pay other detainees to beat up or even
kill him. No further retaliatory action is alleged or described. A plaintiff's allegations of verbal
abuse and threats, as well as threatening gestures and conduct by correctional officers and

officials, without a retaliatory component, are insufficient grounds for relief under § 1983. See


offer money or drugs to other detainees to kill Plaintiff, and Sergeant Ferris” and Captain Milka
(not a named defendant) told Plaintiff that his complaints would never reach Director Baird. He
claims that these threats have caused him “psychological oppression.” Plaintiff fails, however,
to link each of these threats to any specific grievances he filed. Instead, it appears that Plaintiff
alleges these threats outside of the context of his retaliation claim. In fact, he mentions that
Defendants tried to get another person — a social worker — to write a “phoney” grievance against
Plaintiff, but this effort failed. Plaintiff claims no further injury from these threats.

Plaintiff also alleges that Officer Tubemvoll and Sergeant Officer Hernandez ignored his
complaints that corrections officers were not accepting mail that he wished to send. In addition,
he maintains that corrections officers ignored orders from his doctor that Plaintiff should not go
up and down stairs or lift heavy objects. Finally, he contends that ten stamped envelopes were
taken from his cell.

In a subsequent ex parte letter sent to the Court, Plaintiff again alleges that various
Defendants have offered money to other detainees to hurt him. He claims that he has been
threatened for writing grievances and letters to a number of different parties, including a
Chicago Sun Times reporter, Governor Rod Blagojevich, the Justice Department, and the
Attorney Registration and Disciplinary Commission. In the letter he states that he has been
placed in segregation and kicked out of a drug program because he asked an attorney to speak
with department staff. He fails to state which Defendant was responsible for this, or even

whether any Defendant was involved. He also states that he has not been given stamps or

> Sergeant Ferris’ name appears as both Ferris and Farris on various filings with this court. For
purposes of consistency and clarity, and because this is how defendants refer to him, this court will use
Ferris.


information to effectuate service on Defendants Tubemvoll and Lopez, the Court dismisses these
unserved Defendants from the case. For the reasons stated in this order, Defendants’ motion to
dismiss the complaint is granted.
STANDARD OF REVIEW
In considering Rule 12(b)(6) motions to dismiss, the court must accept as true all well-
pleaded facts and must draw all reasonable inferences from those allegations in plaintiff's favor;
a complaint shall only be dismissed if it is beyond doubt that the plaintiff can prove no facts
which would entitle him to relief. MCM Partners, Inc. v. Andrews-Bartlett & Assoc., Inc., 62
F.3d 967, 972 (7 Cir. 1995), Furthermore, when confronted with a pro se complaint, the court
must employ a more liberal standard of review than it would apply where an attorney prepared
the complaint. Haines v. Kerner, 404 U.S. 519 (1972); Whitford v. Boglino, 63 F.3d 527, 535
(7" Cir. 1995). Despite this liberal review of pleadings, federal rules still require that the
complaint allege facts which would provide an adequate basis for each claim. Gray v. Dane
County, 854 F.2d 179, 182 (7* Cir. 1988). On a motion to dismiss, a plaintiff's well-pleaded
allegations of fact are taken as true and all reasonable inferences are drawn in the plaintiff's
favor. Leatherman v. Tarrant County Narcotics Intelligence and Coordination Units, 507 U.S.
163 (1993), Swofford v. Mandrell, 969 F.2d 547, 549 (7" Cir. 1992).
BACKGROUND
Reading Plaintiffs complaint and accompanying pleadings in the light most favorable to
him, the Court takes the following facts as true, for the purpose of this motion to dismiss:
Plaintiff states that Officer Lopez threatened to put a “hit” out on him and have other

detainees beat him up, even offering to pay the detainees to do so. Officer Perez threatened to


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
PATRICK DUNCAN, #2004-001125, )
Plaintiff, }
v. } Case No. 04 C 3196
CALLIE BAIRD, ET AL.’ , }
Defendants. ‘ Doge E FER

OCT
1 € 2004
MEMORANDUM OPINION AND ORDER

AMY J. ST. EVE, District Court Judge:

Plaintiff Daryl Duncan, currently a pre-trial detainee at the Cook County Department of
Corrections, brought this pro se civil rights action pursuant to 42 U.S.C.§ 1983, claiming that
Defendants, employees of the Cook County Department of Corrections, violated his
constitutional rights by retaliating against him after he filed various grievances. Plaintiff claims
that Defendants verbally harassed him, filed disciplinary reports against him, and placed him in
solitary confinement. He further claims that corrections officers refused to deliver his mail and
confiscated several of his stamped envelopes. In addition, Plaintiff alleges that corrections
officers ignored his doctor’s orders regarding his physical limitations.

Defendants have moved to dismiss the complaint. Plaintiff failed to file a response to
Defendants’ motion and therefore, as the Court previously indicated, it will rule without the

benefit of Plaintiff's views. Additionally, because Plaintiff failed to supply necessary additional

' Plaintiff's complaint names the Director of Cook County Department of Corrections as a
defendant. Because Callie Baird is the current director of the department, this court substitutes Baird in
place of Director.



“widespread practice that is so well-settled as to amount to a policy,” Id., citing Abbott v.
Village of Winthrop Harbor, 205 F.3d 976 (7" Cir. 2000). Plaintiff has not pled that any such
policy or practice was in place at the jail. The Court therefore dismisses the complaint against
these Defendants in their official capacities.
VIII. Qualified Immunity

Defendants allege that they are entitled to qualified immunity because Plaintiff has failed
to establish the violation of a constitutional right. The defense of qualified immunity only
arises after a finding by the court that Plaintiff did allege a violation of a constitutional right.
Because the Court finds that Plaintiff has failed to state a constitutional claim for relief, it is not
necessary to address the qualified immunity claim.

CONCLUSION

Plaintiff has not stated any constitutional claims for which he is entitled to relief. For
this reason, Defendants’ motion to dismiss is granted, and the complaint is dismissed without

prejudice. (R. 14-1.)

Dated: October 12, 2004 ENTERED

{dr.{

AMY J. STAB
United States District Court Judge

12