Opinion
Case No. 03 C 9066.
September 20, 2004
MEMORANDUM OPINION AND ORDER
The Plaintiff, James Curtis, currently an inmate at Stateville Correctional Center, brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. The case was originally assigned to Judge Bucklo; subsequently, the parties consented to the entire case being heard by this Court. Plaintiff claims that the defendants, Correctional Officer James Cappello ("Cappello") and Superintendent Martha Salazar, who was a Captain at the time of the alleged incident ("Salazar") of the Cook County Department of Corrections, violated his constitutional rights by retaliating against him through verbal harassment and through false disciplinary charges, after he cooperated in a jail investigation. For the reasons stated in this order, the defendants' motion to dismiss the complaint is granted.
Standard of Review
In considering F.R.C.P. 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 (7th Cir. 1995). Furthermore, when confronted with a pro se complaint, the court must employ a more liberal standard of review than would be used where an attorney prepared the complaint. Haines v. Kerner, 404 U.S. 519 (1972); Whitford v. Boglino, 63 F.3d 527, 535 (7th 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 (7th 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 (7th Cir. 1992). Additionally, as long as they are consistent with the allegations of the complaint, a party may assert additional facts in his or her response to a motion to dismiss. Travel All Over the World, Inc. v. Kingdom of Saudi Arabia, 73 F.3d 1423, 1428 (7th Cir. 1996); Highsmith v. Chrysler Credit Corp., 18 F.3d 434, 439-40 (7th Cir. 1994). Furthermore, the court can take judicial notice of matters of public record without converting a motion to dismiss into one for summary judgment. Henson v. CSC Credit Services, 29 F. 3d 280, 284 (7th Cir. 1984).
Background
In a November 10, 2003 order entered by Judge Bucklo, in another separate lawsuit brought by this Plaintiff, the court dismissed the two defendants in this case and permitted plaintiff to bring a separate action against Salazar and Cappello. Thus, Plaintiff submitted this lawsuit.
Plaintiff originally filed suit against additional defendants Timberlake and Jefferson, for unrelated conduct, in Case No. 03 C 4739.
Reading Plaintiff's 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 claims that on November 3, 2002, defendant Cappello falsely accused Plaintiff of insubordination in retaliation for Plaintiff's cooperation with jail authorities investigating reports of misconduct committed by Defendant Cappello. He also claims that Cappello in fact wrote up a false disciplinary report against him and placed him in segregation, as punishment for Plaintiff's cooperating with defendant's superiors, and also threatened him and otherwise verbally abused him.
Plaintiff states that Defendant Salazar, Cappello's supervisor, shortened Plaintiff's segregation, after she learned about the retaliation and the false disciplinary report, but he claims that she could have released him from segregation "upon acknowledgment", supposedly meaning outside of the normal jail procedures.
Defendants' Motion to Dismiss
Defendants first argue that Plaintiff failed to exhaust administrative remedies prior to filing this suit, in violation of 42 U.S.C. § 1997e(a). In support of this position, they submit evidence in the form of Plaintiff's grievance form, which Plaintiff had also submitted with his initial complaint. The court may consider this evidence, because Plaintiff included the same form as an attachment to his complaint. See Fed.R.Civ.P. 10(c) ("A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes."); see also Tierney v. Vahle, 304 F.3d 734, 738 (7th Cir. 2002) (letter attached to complaint became part of complaint for purposes of court's ruling on motion to dismiss). Defendants claim that the contents of the grievance do not state that Cappello was retaliating against Plaintiff for Plaintiff's cooperating with authorities; rather, defendants claim that the grievance submitted bears no relation to the alleged retaliation which is the gist of Plaintiff's complaint. If this is correct, then although Plaintiff did submit a grievance, it was the wrong grievance, and would not support his claim that he has properly exhausted all administrative remedies.
Next defendants argue that Plaintiff has failed to state a claim against defendants in their official capacities, because he has not alleged a policy or practice that is the basis for an official capacity claim. Defendants claim that, under Seventh Circuit law, if a Plaintiff does not expressly state that defendants are sued in their individual capacity, a public official defendant is presumed to have been sued in his official capacity only.
Defendants further argue that Plaintiff has failed to state a claim related either to his discipline or to his jail conditions. Finally, defendants contend that Plaintiff does not state a claim for retaliation, arguing that he has not met the proper pleading standard.
Discussion
1) Retaliation claim
Before determining whether Plaintiff has exhausted his administrative remedies, and to understand whether or not he has done so, the court first examines the components of a properly pled retaliation claim, in order to determine whether Plaintiff included elements of this claim in his grievance. This case is not about the false discipline claim or the verbal abuse claim, but rather it is that these actions were taken against the Plaintiff in retaliation for a protected activity, the cooperation with authorities in an investigation of defendants. Therefore, actions that would normally be permissible, may not be done to retaliate against a prisoner for the exercise of his fundamental constitutional rights. Zimmerman v. Tribble, 226 F.3d 568, 573 (7th Cir. 2000). These fundamental rights include an inmate's First Amendment right to file grievances. See DeWalt v. Carter, 224 F.3d 607, 618 (7th Cir. 2000). The First Amendment right may also include an inmate's right to cooperate with officials investigating inmate abuse by jail officials. See Franco v. Kelly, 854 F.2d 584, 589 (2d Cir. 1988). In a 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 (7th 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 Cappello retaliated against him for cooperating in an investigation at the jail, this is a first amendment right. Babcock, 102 F. 3d at 275; Geder v. Godinez, 875 F. Supp. 1334 (N.D. Ill. 1995). Jail officials may not retaliate against inmates for exercising such rights. See DeWalt v. Carter, 224 F.3d at 618.
Defendants argue, however, that a chronology of events must be pleaded in the complaint in order to state a retaliation claim. This is a misstatement of current law. Such a chronology is unnecessary (and indicative of a heightened pleading standard inapplicable to civil rights claims) as long as the complaint sufficiently notifies the defendants and the court of the nature of the claims. Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002); Walker, 288 F.3d at 1008-09. All that a plaintiff must specify is the bare minimum of facts necessary to put a defendant on notice of the claim so that an answer may be filed. Higgs, 286 F.3d at 439, citing Beanstalk Group, Inc. v. AM General Corp., 283 F.3d 856, 863 (7th Cir. 2002). This generally requires only that a plaintiff identify his own protected conduct and the act of retaliation by jail officials. Id. (internal citations omitted).
Plaintiff's allegations of retaliatory conduct by Cappello, under the liberal pleading requirement, may possibly state a claim. Plaintiff's claim is that Cappello retaliated against him by 1) filing a false disciplinary report; and 2) verbally threatening him, because Plaintiff cooperated with an investigation of Cappello. The first basis for the claim may be sufficient, because he alleges that Salazar reduced the disciplinary segregation after learning of the false report. Walker v. Thompson, 288 F.3d 1005, 1011-12 (7th Cir. 2002) (plaintiff must state at least the grievance leading to the retaliation and the acts constituting retaliatory conduct).
2) Exhaustion of Administrative Remedies
Nevertheless, the court need not decide this issue, because defendants correctly show that Plaintiff failed to exhaust his administrative remedies with respect to the matters alleged in his complaint. 42 U.S.C. § 1997e(a). See Perez v. Wisconsin Dept. of Corrections, 182 F.3d 532, 535 (7th Cir. 1999) ("a suit filed before administrative remedies have been exhausted must be dismissed"); Larkin v. Galloway, 266 F.3d 718, 723 (7th Cir. 2001).
According to 42 U.S.C. § 1997e(a), "[n]o 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." See Porter v. Nussle, 536 U.S. 516 (2002); Massey v. Helman, 259 F.3d 641 (7th Cir. 2001); Johnson v. Litscher, 260 F. 3d 826 (7th Cir. 2001). Plaintiff alleges in his complaint that he did exhaust available administrative remedies and he attaches a copy of his grievance.
As the Seventh Circuit made clear in Strong v. David, 297 F. 3d 646, 649 (7th Cir. 2002):
When the administrative rulebook is silent, a grievance suffices if it alerts the prison to the nature of the wrong for which redress is sought. As in a notice-pleading system, the grievant need not lay out the facts, articulate legal theories, or demand particular relief. All the grievance need do is object intelligibly to some asserted shortcoming.
Defendants are correct that Plaintiff did not meet this standard. His grievance makes no mention, either implicitly or explicitly, of retaliation against him by Cappello for Plaintiff's cooperation with authorities. The grievance complains of a November 3, 2002 incident in which Cappello entered his cell and swore at him. It is well-established that verbal abuse, while reprehensible, does not amount to a constitutional violation. See, e.g., DeWalt v. Carter, 224 F.3d at 612 (verbal harassment, standing alone, does not deprive inmate of any constitutionally protected rights) (internal citations omitted).
There is no suggestion in the attached grievance that Cappello was retaliating against Plaintiff as a punishment for cooperating with the investigation, or any mention of any sort of investigation. Therefore this grievance would not alert jail authorities to the nature of the wrong for which redress is sought. In this case, the failure to exhaust is "so plain from the face of the complaint that the suit can be regarded as frivolous." Walker, 288 F.3d at 1009.
Additionally, because 42 U.S.C. § 1997e(a) prohibits a prisoner from bringing suit without exhausting administrative remedies, if exhaustion is no longer possible then the suit is barred. McCoy v. Gilbert, 270 F.3d 503, 510 (7th Cir. 2001); see also Wheeler v. Kolman, 2004 WL 420163, *4 (W.D. Wis. 2004) (dismissal with prejudice proper when plaintiff no longer had an opportunity to complete the administrative grievance process). Such a defect is properly termed a procedural default and thus is properly dismissed with prejudice. In this case, Plaintiff failed to exhaust. Now exhaustion is no longer possible for two reasons: 1) the jail time limits for filing a grievance are long past; and 2) Plaintiff is no longer at the jail. Thus, the court grants Defendants' motion to dismiss based on Plaintiff's failure to exhaust administrative remedies. The dismissal is with prejudice. Having determined this, the court will only briefly comment on other matters raised in defendants' motion.
3) Official and Individual Capacity
Defendants also argue that Plaintiff's complaint should be dismissed, because he failed to specify whether he wished to sue them in their individual or official capacities. The Seventh Circuit has held that Kolar v. County of Sangamon, 756 F.2d 546 (7th Cir. 1985), one of the cases upon which Defendants rely, "does not contain a rigid rule that a § 1983 plaintiff who fails to designate whether a defendant is being sued in her official or individual capacity shall be presumed to be bringing the action against the defendant in her official capacity." Miller v. Smith, 220 F.3d 491, 494 (7th Cir. 2000), citing Hill v. Shelander, 924 F.2d 1370, 1373 (7th Cir. 1991).
In the Hill case, the court construed the plaintiff's suit to have been brought against the defendant in his individual capacity, because he sought punitive damages and challenged defendant's individual actions. See Hill, 924 F.2d at 1374. In Kolar, the complaint was construed as a suit against defendant in his official capacity, because plaintiff challenged an official policy or custom. See id. at 1373. In the instant case, Plaintiff does not attack a jail policy or custom, but rather challenges the individual conduct of Cappello and Salazar. Therefore, the court construes the complaint to have been brought against defendants in their individual capacities.
4) Dismissal of Defendant Salazar
Plaintiff alleges that Salazar knew of Cappello's alleged misconduct. He claims that, had Salazar intervened in a timely and appropriate manner, Plaintiff would not have been retaliated against by Cappello. Respondeat superior does not apply in § 1983 actions; thus, for Salazar to be held individually liable, she must be "personally responsible for the deprivation of a constitutional right." Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001) (internal citations omitted). For a supervisor to be held liable for the misconduct of a subordinate, the supervisor must have acted with reckless or deliberate indifference to that misconduct. Chavez v. Illinois State Police, 251 F.3d 612, 651 (7th Cir. 2000). The supervisor must "know about the conduct and facilitate it, approve it, condone it, or turn a blind eye for fear of what they might see." Id. (internal citations omitted).
Plaintiff has made no such allegation about Salazar. Quite the contrary, Plaintiff states that when Salazar found out about the false discipline, she reduced the segregation time. Nothing in his pleadings states that Salazar had previous knowledge of Cappello's conduct with respect to Plaintiff, nor that she facilitated it or otherwise condoned of it. Therefore, defendant Salazar is dismissed from this action.
5) Substance of Plaintiff's false discipline and verbal abuse claims
The court need not address whether Plaintiff stated a claim for relief on either of these issues since they form only part of the picture of the retaliation claim. Standing alone, a false discipline claim that has been corrected, as Plaintiff suggests, fails to state a claim. Morissette v. Peters, 45 F.3d 1119, 1122 (7th Cir. 1995) states: "There is no denial of due process if the error the inmate complaints of is corrected in the administrative appeal process." The administrative review process is part of the due process afforded prisoners. Id. Since Plaintiff admits that Salazar reduced his segregation once she learned of the false disciplinary charges, Plaintiff has failed to state a claim for relief on this issue.
Similarly, Plaintiff has failed to state a claim for verbal threats against him. It is well-established that allegations of verbal abuse and threats, as well as threatening gestures and conduct by correctional officers and officials are insufficient grounds for relief under § 1983. See DeWalt v. Carter, 224 F.3d at 612; Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th 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 (8th 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 (5th 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 (10th Cir. 1979) (allegation that Sheriff threatened to hang prisoner does not state a claim under § 1983).
To summarize, although Plaintiff may have stated a claim for retaliation of his First Amendment rights, he failed to exhaust administrative remedies with regard to this claim. For this reason, the case is dismissed in its entirety.