Gregory Jones v. Kim Butler , 663 F. App'x 468 ( 2016 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 7, 2016 *
Decided September 19, 2016
Before
DIANE P. WOOD, Chief Judge
RICHARD A. POSNER, Circuit Judge
FRANK H. EASTERBROOK, Circuit Judge
No. 15-2850
GREGORY D. JONES, Appeal from the United States District
Plaintiff-Appellant, Court for the Southern District of Illinois.
v. No. 14-CV-846-NJR-DGW
KIMBERLY BUTLER, et al., Nancy J. Rosenstengel,
Defendants-Appellees. Judge.
ORDER
Gregory Jones, an Illinois inmate serving a life sentence, brought this suit under
42 U.S.C. § 1983 after his strategy to obtain reassignment to a favored prison backfired.
Jones instead ended up at a facility where, he says, he was at risk of physical injury,
prompting this litigation.
Jones had been housed in protective custody at Pontiac Correctional Center until
early 2014. But he wanted to return to his previous assignment at Stateville Correctional
*
We have unanimously agreed to decide the case without oral argument because
the briefs and record adequately present the facts and legal arguments, and oral
argument would not significantly aid the court. See FED. R. APP. P. 34(a)(2)(C).
No. 15-2850 Page 2
Center because, in his view, the medical care at that prison is better. According to Jones,
he was told by administrators at Pontiac that transfers are not given to inmates in
protective custody, so, in his words, he “signed himself out” of protective custody and
returned to the general population. After that he was reassigned to a different prison,
though not Stateville. Jones was sent instead to Menard Correctional Center, where, he
alleges, he had earned the ire of guards by testifying against two of them in 2009 during
unsuccessful lawsuits. Jones brought this action less than four months after returning to
Menard, asking the district court, “1st and foremost,” to order that he be transferred
permanently out of Menard.
In his original complaint, Jones claimed that Menard’s warden along with an
unidentified guard and four other Department of Corrections employees were violating
the Eighth Amendment by not protecting him from harm. Unnamed gang members and
guards were threatening his safety, Jones asserted, and once during a shakedown he was
slapped and kicked and called a “snitch” by guards who are not defendants. Jones
added that, despite being threatened, he initially had been denied placement in
protective custody (since he had voluntarily given up that placement at Pontiac).
At screening, see 28 U.S.C. § 1915A, the district court dismissed this original
complaint on the ground that Jones did not allege personal involvement by the named
defendants. The court also noted that Jones was in protective custody. Jones then
amended his complaint, dropping as defendants all but the warden at Menard and two
DOC employees—the Transfer Coordinator and another administrator, both at
headquarters. The latter defendants, Jones alleged, had been “reminded” before his
transfer to Menard that guards at that facility previously had warned him not to return.
And the warden at Menard, he added, was not protecting him from threatened
retribution by errant guards and other inmates (even inmates in protective custody).
This time at screening the district court allowed Jones to proceed against the warden but
once more dismissed the complaint as against the other defendants, neither of whom
was alleged to have participated in the decision to transfer Jones to Menard. Three days
after this order was issued, however, Jones was transferred back to Pontiac (the warden
told the court that the timing was coincidental). The district court then granted the
warden’s motion for judgment on the pleadings, reasoning that Jones’s lawsuit had been
rendered moot by his transfer.
In this court Jones makes several arguments about the merits of his lawsuit, but
we start with the question whether the district court correctly disposed of the entire case
on the ground that it had become moot when Jones was transferred back to Pontiac.
No. 15-2850 Page 3
Certainly his demand for injunctive relief became moot, since Jones demanded and got a
transfer, see Lehn v. Holmes, 364 F.3d 862, 871 (7th Cir. 2004); Higgason v. Farley, 83 F.3d
807, 811 (7th Cir. 1996), with only his conjecture suggesting the possibility of being
returned to Menard in the future, see Higgason, 83 F.3d at 811 (“Allegations of a likely
retransfer may not be based on mere speculation.”).
According to the warden, this should conclude our analysis; although Jones now
insists that he is entitled to damages, the warden contends that he waived any right to
seek damages by mentioning only injunctive relief in the district court. Yet the
authorities cited by the warden stand only for the uncontroversial proposition that a
litigant may not amend his complaint on appeal to add a new claim. See Agnew v. Nat’l
Coll. Athletic Ass’n, 683 F.3d 328, 347–48 (7th Cir. 2012); Sanjuan v. Am. Bd. of Psychiatry &
Neurology, 40 F.3d 247, 251 (7th Cir. 1994). The warden’s assertion that Jones would have
been limited to injunctive relief is incorrect, and the district court should have evaluated
whether Jones might be entitled to other relief before dismissing the suit solely because of
his transfer. A prevailing party should receive any relief to which it is entitled, “even if
the party has not demanded that relief in its pleadings,” see FED. R. CIV. P. 54(c), and “the
demand is not itself a part of the plaintiff’s claim,” Bontkowski v. Smith, 305 F.3d 757, 762
(7th Cir. 2002); see also 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 1255 (3d ed. 2016). In other words, an incomplete demand for relief does not
warrant dismissal of a properly stated claim. Bontkowski, 305 F.3d at 762.
We can affirm the dismissal nonetheless because Jones’s complaint fails to state a
claim against these defendants, no matter the relief requested. Recall that Jones alleged
that the warden and other named defendants had failed to protect him from threats of
violence at the hands of both inmates and vengeful guards. But Jones was moved to
protective custody (and, shortly after that, back to Pontiac) without suffering an assault
by other inmates. And neither did the guards who, years earlier, had threatened
retaliation if Jones returned to Menard ever follow through. Absent cognizable harm,
Jones does not have a claim for damages, for “it is the reasonably preventable assault
itself, rather than any fear of assault, that gives rise to a compensable claim under the
Eighth Amendment.” Babcock v. White, 102 F.3d 267, 272 (7th Cir. 1996). Moreover, even
if we take a generous view of what Jones now calls his “battery claim”— that, on one
occasion, tactical team officers kicked and slapped him—he never tried to bring a claim
of excessive force against the perpetrators, and the named defendants cannot be held
liable for not protecting him from that incident. Jones’s vague statements that he felt
unsafe at Menard because all of the guards there were out to get him because of a
years-old grudge was inadequate to alert the warden or DOC officials that he faced a
No. 15-2850 Page 4
credible, excessive risk of serious harm. See Brown v. Budz, 398 F.3d 904, 909–12 (7th Cir.
2005); Dale v. Poston, 548 F.3d 563, 569 (7th Cir. 2008).
AFFIRMED.