United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
JON E.
DEGUILIO JUDGE
Andre
Nelson-El, a prisoner without a lawyer, initiated this
lawsuit by filing a complaint and a motion for a preliminary
injunction. ECF 1, ECF 4. He later filed two motions to amend
seeking leave to add several evidentiary documents. ECF 5,
ECF 6. The court will grant the motions, which have been
construed as a request to supplement his motion for
injunctive relief, and has considered those documents
accordingly in evaluating his claims.[1] “A document filed pro
se is to be liberally construed, and a pro se complaint,
however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(quotation marks and citations omitted). Nevertheless,
pursuant to 28 U.S.C. § 1915A, the court must review the
merits of a prisoner complaint and dismiss it if the action
is frivolous or malicious, fails to state a claim upon which
relief may be granted, or seeks monetary relief against a
defendant who is immune from such relief.
Nelson-El
has sued three defendants for injunctive relief and monetary
damages related to his participation in the Recovery While
Incarcerated drug rehabilitation program (the Program) at the
Westville Correctional Facility (WCF). Nelson-El begins by
alleging his First Amendment rights were violated when he was
removed from the Program in retaliation for speaking out
against the way it is being run. “To prevail on his
First Amendment retaliation claim, [the plaintiff] must show
that (1) he engaged in activity protected by the First
Amendment; (2) he suffered a deprivation that would likely
deter First Amendment activity in the future; and (3) the
First Amendment activity was at least a motivating factor in
the Defendants' decision to take the retaliatory
action.” Gomez v. Randle, 680 F.3d 859, 866
(7th Cir. 2012) (quotation marks and citations omitted).
“Inmates retain a First Amendment right to complain
about prison staff, whether orally or in writing, but only in
ways consistent with their status as prisoners.”
Caffey v. Maue, 679 Fed.Appx. 487, 490 (7th Cir.
2017) (citing Turner v. Safley, 482 U.S. 78, 89-90
(1987); Watkins v. Kasper, 599 F.3d 791, 796-97 (7th
Cir. 2010)).
Nelson-El
alleges he approached Marlene Elkins-Watts (Watts),
[2] the
Program's director, in July of 2018 with concerns that
other inmates she had assigned to high-level positions within
the Program were spreading false rumors about his suspected
drug use. In response, Watts accused Nelson-El of
“dividing staff against each other” and breaking
protocol by not first addressing those concerns with his
primary counselor, Alexandria Bucher. ECF 2 at 4. Watts
verbally berated Nelson-El and ultimately terminated his
unofficial mentorship position due to this alleged breach.
Then,
in August of 2018, during a question and answer session
following a lecture given by Bucher to inmates of the Program
as part of a group therapy session, Nelson-El publicly voiced
his general concerns related to Watts's enforcement of
various Program disciplinary policies. Specifically,
Nelson-El expressed his opinion that Watts's practice of
“mass punishing and obviating everyone's recovery
plan” due to the actions of a select few was arbitrary,
violated IDOC policy, ran afoul of proper due process, and
“created a hostile environment amongst the [Program
inmates].” ECF 2 at 6. Bucher informed Watts that he
had done so later that afternoon, falsely indicating that
Nelson-El had also told her to “shut up” when she
attempted to interrupt him. Id. Watts responded by
using profane and threatening language to verbally berate all
of the inmates involved in the Program, and she specifically
confronted Nelson-El to reprimand him for publicly
questioning her directorial decisions. According to
Nelson-El, Watts removed him from the Program the next day in
retaliation for expressing those concerns. As a result, he
was reclassified and moved to the “worst section of the
prison” which was run by Watts's husband, a unit
team manager and correctional officer at WCF. ECF 2 at 8. He
was also restricted from participating in the Program for 180
days and prevented from getting an institutional job for 90
days. Shortly after the incident, Watts impeded and censored
Nelson-El's access to the mail and kiosk systems so that
he had difficulty communicating with his family or writing
letters with his concerns about the Program to Watts's
supervisor. Nelson-El admits, however, that his letters have
“recently” been received and answered by the
Assistant Director of Addiction Recovery Service. ECF 2 at 9.
Based
on these allegations, Nelson-El has stated a claim for First
Amendment relation against Watts in her individual capacity
for compensatory and punitive damages stemming from
Nelson-El's August 2018 removal from the Program.
Additionally,
Nelson-El, who is African-American, alleges Watts violated
his Fourteenth Amendment rights when she applied different
standards to the removal process because of his race.
“Unless it is narrowly tailored to serve a compelling
state interest, racial discrimination by state actors
violates the Equal Protection Clause of the Fourteenth
Amendment.” DeWalt v. Carter, 224 F.3d 607,
618 (7th Cir. 2000). “A plaintiff asserting an equal
protection violation must establish that a state actor has
treated him differently than persons of a different race and
that the state actor did so purposefully.” Id.
Nelson-El
claims that, after Watts discovered he had aired his
grievances during the group therapy session, she removed him
from the Program without warning based on those accusations
alone and later precluded him from getting back in. On the
other hand, Caucasian inmates who “actually got into
trouble” for similar or worse violations of Program
rules were given warnings before being removed and were
allowed to “get right back into the [P]rogram without
any problems.” ECF 2 at 10. He witnessed Watts allow
Caucasian workers to rotate back into high-ranking
positions-receiving second and third chances even after they
had been terminated initially-but African-Americans were not
afforded that option. Giving Nelson-El the inferences to
which he is entitled at this stage, the complaint plausibly
suggests Watts applied different standards to the removal
process and refused to allow Nelson-El back into the Program
on the basis of his race, which states a claim under the
Equal Protection Clause of the Fourteenth Amendment. He may
proceed against Watts in her individual capacity for
compensatory and punitive damages on this claim.
That
said, while Nelson-El repeatedly references Watts's use
of profane, derogatory, and racially insensitive language and
her tendency to promote, condone, and/or ignore the
discriminatory behavior of Caucasian inmates within the
Program, these allegations do not state a claim.
“[H]arassment, while regrettable, is not what comes to
mind when one thinks of ‘cruel and unusual'
punishment.” Dobbey v. Ill. Dep't of
Correction, 574 F.3d 443, 446 (7th Cir. 2009) (noting
that the behavior of a Caucasian guard who hung a noose from
the ceiling and made “crazy” eyes at an
African-American inmate fell “well short” of
violating the Constitution). Although it is
“unprofessional and deplorable, ” using racially
derogatory language does not violate the Constitution.
DeWalt, 224 F.3d at 612 (“Standing alone,
simple verbal harassment does not constitute cruel and
unusual punishment, deprive a prisoner of a protected liberty
interest or deny a prisoner equal protection of the
laws.”).
As to
Bucher, Nelson-El has not plausibly alleged facts
demonstrating she deprived him of any First or Fourteenth
Amendment rights. Nelson-El complains Bucher broke the
Program's conduct rules when she interrupted him while he
was trying to express his concerns during the question and
answer session, violated his confidentiality rights by
relaying those concerns to Watts without his consent, and
fabricated “material facts” when she informed
Watts he had told her to shut up. But violating the
Program's rules does not implicate First Amendment
concerns. See Scott v. Edinburg, 346 F.3d 752, 760
(7th Cir. 2003) (“42 U.S.C. § 1983 protects
plaintiffs from constitutional violations, not violations of
state laws or, in this case, departmental regulations and
police practices.”). Moreover, nothing in the complaint
suggests she participated in any form of racial
discrimination. See George v. Smith, 507 F.3d 605,
609 (7th Cir. 2007) (“Only persons who cause or
participate in the [Constitutional] violations are
responsible.”). Thus, the claims against Bucher will be
dismissed.
Finally,
Nelson-El asserts claims against Watts and Warden Sevier for
an injunction ordering “defendants not to discriminate
[any] more against opposite races and no longer use
retaliatory actions against Nelson-El.” ECF 2 at 13.
Similarly, his motion for injunctive relief-which the court
has analyzed in conjunction with his complaint-requests the
enforcement of “equitable treatment” within the
Program and the cessation of retaliation and/or
discrimination by Watts and her
“connections.”[3] ECF 4 at 5. A complaint states a claim
for equitable relief when there is a non-conjectural
likelihood of “substantial and immediate irreparable
injury, and the inadequacy of remedies at law.”
City of Los Angeles v. Lyons, 461 U.S. 95, 103
(1983) (citing O'Shea v. Littleton, 414 U.S.
488, 502 (1974)). “[P]ast wrongs do not in themselves
amount to that real and immediate threat of injury . . .
.” Id. (citing Rizzo v. Goode, 423
U.S. 362 (1976)). To justify injunctive relief, the threat of
irreparable injury must be real, substantial, and immediate
as opposed to speculative. Id. at 106-111. If a
plaintiff does not allege that he is “realistically
threatened” by a repetition of events from which he
suffered a past harm, “then he has not met the
requirements for seeking an injunction in federal court,
whether the injunction contemplates intrusive structural
relief or the cessation of a discrete practice.”
Id. at 109.
Here,
with regard to potential future discrimination, the court
notes that Nelson-El is no longer a participant in the
Program. His complaint does not suggest that he currently
interacts with Watts, her staff, or any of the trustee
inmates in the Program. He does not request reinstatement to
the Program as a form of injunctive relief. Thus, it is not
reasonable to infer that he will be subjected to additional
discrimination by Watts. And, although his recently filed
affidavits describe what he refers to as systemic
discrimination, nepotism, and cronyism at WCF and set forth a
litany of new, unrelated issues within the prison that he
attributes generally to racism, he does not plausibly link
any of those allegations to Watts in a way that would serve
to establish a realistic, non- conjectural threat of future
discrimination.[4] ECF 7, ECF 8. As such, Nelson-El's
fears of future discrimination at the hands of or by behest
of Watts are little more than speculation and do not provide
a basis for injunctive relief. See City of Los
Angeles, 461 U.S. at 106-111 (irreparable injury must be
real, substantial, and immediate).
Turning
to Nelson-El's fears of future retaliation, even with
regard to First Amendment retaliation cases-which recognize
the dangers of chilling speech and generally presume
irreparable harm flowing from it-the Seventh Circuit has
acknowledged that vague, uncertain retaliatory conduct is not
appropriate for injunctive relief. See Capeheart v.
Terrell, 695 F.3d 681, 685-86 (7th Cir. 2012). In
Capeheart, the court declined to reach the merits of
the plaintiff's claim for prospective relief because it
was “too speculative, the prospect of similar harms too
remote.” Id. at 684-85.
Noting
that she had not shown she was in “immediate”
danger of suffering ...