Wright v. Beyers

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

PEORIA DIVISION

JAMES EARL WRIGHT, JR., )

Plaintiff, )

)

v. ) Case No. 1:19-cv-02208-MMM

)

MICHAEL MELVIN, et al., )

Defendants. )

MERIT REVIEW ORDER

MICHAEL M. MIHM, United States District Judge:

Plaintiff pro se, James Earl Wright, Jr., who is imprisoned at Pontiac Correctional Center

(“Pontiac”), filed a complaint [1] under 42 U.S.C. § 1983 and a motion seeking this Court’s

assistance in recruiting counsel [5] as provided by 28 U.S.C. § 1915(e)(1).

I. THE SCREENING STANDARD

Plaintiff’s complaint is before the Court for merit review pursuant to 28 U.S.C. §1915A,

which requires the Court to “screen” Plaintiff’s complaint, and through such process, identify

and dismiss any legally insufficient claim, or the entire action if warranted. A claim is legally

insufficient if it “(1) is frivolous, malicious, or fails to state a claim upon which relief may be

granted; or (2) seeks monetary relief from a defendant who is immune from such relief.” 28

U.S.C. § 1915A(b)(1)-(2). In reviewing the complaint, the Court accepts the factual allegations

as true, liberally construing them in the plaintiff’s favor. Turley v. Rednour, 729 F.3d 645, 649

(7th Cir. 2013). However, conclusory statements and labels are insufficient. Enough facts must

be provided to “state a claim for relief that is plausible on its face.” Alexander v. United States,

721 F.3d 418, 422 (7th Cir. 2013) (citation omitted).

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II. PLAINTIFF’S CLAIMS

A. Deliberate Indifference to Serious Medical Need

On August 22, 2017, Plaintiff ate a portion of his lunch meal when he noticed a dead

mouse on his meal tray. At various times that day, Plaintiff asked Defendants Allen, Beyers,

James Blackard, Mrozek, Sellers, and Justine Skinner to go to the healthcare unit “to get some

antibiotics or penicillin just to be safe,” but each person refused his request. (ECF 1: p. 7.)

“The Eighth Amendment protects a detainee not only from deliberate indifference to his

or her current serious health problems, but also from deliberate indifference to conditions posing

an unreasonable risk of serious damage to future health.” Board v. Farnham, 394 F.3d 469, 479

(7th Cir. 2005) (emphasis in original)). An inmate who seeks damages for future injury must

“show ‘to a degree of reasonable medical certainty’ that he actually faced an increased risk of

injury.” Gray v. Hardy, 826 F.3d 1000, 1007 (7th Cir. 2016) (quoting Henderson v. Sheahan,

196 F.3d 839, 851 (7th Cir. 1999)).

The Court concludes that as pleaded, Plaintiff’s allegations do not state a claim against

the identified defendants. Plaintiff filed his complaint almost two years after the alleged incident

occurred, but he does not provide any facts to infer that he suffered an injury or faced an

increased risk of harm thereafter as a result of not receiving medical care in August 2017.

B. Retaliation

As a consequence of Plaintiff’s refusal to surrender his lunch tray, Defendant Skinner

issued Plaintiff an “Offender Disciplinary Report” for disobeying a direct order. (1-1: p. 15.)

Plaintiff claims that Defendants Blackard, Punke, and Skinner retaliated against him by filing the

disciplinary report.

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“To prevail on a First Amendment retaliation claim, [a plaintiff] must show: (1) he

engaged in protected activity; (2) he suffered a deprivation likely to deter future protected

activity; and (3) his protected activity was a motivating factor in the defendants’ decision to

retaliate.” Daugherty v. Harrington, 906 F.3d 606, 610 (7th Cir. 2018).

Plaintiff fails to state a retaliation claim because he acknowledges that Skinner issued the

ticket as a result Plaintiff’s defiance, which is not a protected activity. Plaintiff also does not

provide any facts showing personal involvement by Blackard and Punke. See Mitchell v. Kallas,

895 F.3d 492, 498 (7th Cir. 2018) (“For a defendant to be liable under section 1983, she must be

personally responsible for the alleged deprivation of the plaintiff’s constitutional rights.”)

C. Conditions of Confinement

1. The Denial of Plaintiff’s Grievance

On an undisclosed date, Plaintiff claims that he filed a grievance regarding the conditions

of his confinement that officials did not process. In August 2017, Plaintiff filed another

grievance on that issue. During the ensuing grievance procedure that followed, Defendants Jamie

Horton (counselor), Sandra Simpson (grievance officer), and Michael Melvin (warden) denied

Plaintiff’s grievance. On appeal, Defendant Sherry Benton (Administrative Review Board)

denied the grievance because Plaintiff did not submit it within sixty days after discovering the

issue grieved. (1-1: p. 5.) Plaintiff alleges that Defendants were deliberately indifferent by

denying his grievance.

Plaintiff’s allegation does not state a plausible claim because processing Plaintiff’s

grievance absent Defendants' involvement in the claimed constitutional deprivation is

insufficient to establish a constitutional violation. See Owens v. Hinsley, 635 F.3d 950, 953 (7th

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Cir. 2011) (“Prison grievance procedures are not mandated by the First Amendment and do not

by their very existence create interests protected by the Due Process Clause, and so the alleged

mishandling of [an inmate’s] grievances by persons who otherwise did not cause or participate in

the underlying conduct states no claim.”).

2. North Cell House

After refusing to surrender his lunch tray on August 22, 2017, Plaintiff was placed in a

limited property status for forty-eight hours. (1-1: p. 7.) Defendant Beyers escorted Plaintiff from

the west to north cell house and placed Plaintiff in a cell. Plaintiff states that the cell did not have

a mattress, and he did not have access to hygiene items or his property. Plaintiff requested

bedding and hygiene supplies, but Defendant Mrozek informed Plaintiff that he was on “strip

out” status. (1: p. 9.) Plaintiff spoke with Defendant Brooks and “explained his situation,” but

Brooks ignored him. (Id.) Plaintiff’s attachments show that he was provided his property on

August 24, 2017. (1-1: p. 9.)

For a prison condition to be sufficiently serious, “a prison official’s act or omission must

result in the denial of ‘the minimal civilized measure of life’s necessities.’” Farmer v. Brennan,

511 U.S. 825, 834 (1994) (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). Under the

Eighth Amendment, life's necessities include shelter and heat, as well as hygiene items. Gillis v.

Litscher, 468 F.3d 488, 493 (7th Cir. 2006); see also Budd v. Motley, 711 F.3d 840, 843 (7th Cir.

2013) (holding that the Eighth Amendment’s standard of habitability requirement includes

adequate bedding).

The Court concludes that Plaintiff provides enough facts to state an Eighth Amendment

conditions of confinement claim against Defendants Beyers, Brooks, and Mrozek. See Townsend

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v. Fuchs, 522 F.3d 765, 774 (7th Cir. 2008) (citing McCord v. Maggio, 927 F.2d 844, 846-47

(5th Cir. 1991) (“[C]onfinement in isolation without adequate clothing or bedding supports

Eighth Amendment claim.”). Plaintiff also attempts to allege a Fourteenth Amendment claim,

but this relatively short time did not implicate due process concerns. See Holly v. Woolfolk, 415

F.3d 678, 679 (7th Cir. 2005) (noting that “being placed in segregation [for two days] is too

trivial an incremental deprivation of a convicted prisoner's liberty to trigger the duty of due

process”)

3. West Cell House

On November 4, 2017, Plaintiff was transferred back to the west cell house where he

alleges he was “forced to live” in a cell that had no hot water, exposed wires, black mold, rust,

and a leaking ceiling “yet all failed to correct such issues.” (1: p. 10.) Plaintiff claims that the cell

house sergeant, lieutenant, and major as well as all correctional officers on all work shifts, were

aware of the conditions but took no action. As alleged, the Court concludes that Plaintiff does not

state a claim because he does not provide enough factual support. See Rasho v. Elyea, 856 F.3d

469, 478 (7th Cir. 2017) (“[I]n order to hold an individual defendant liable under § 1983 for a

violation of an inmate’s constitutional rights, the inmate must show that the defendant was

personally responsible for that violation.”)

Moreover, the Court concludes that Plaintiff’s allegations regarding the poor cell

conditions he experienced in November 2017 belong in a different lawsuit. Plaintiff raises a

separate claim that occurred over two months later by other correctional officers. See George v.

Smith, 507 F.3d 605, 607 (7th Cir. 2007) (holding that unrelated claims against different

defendants belong in different suits, not only to prevent morass but also to ensure that prisoners

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pay the required filing fees). If Plaintiff intends to pursue that claim, he must file a separate

lawsuit and pay the required filing fees.

E. Remaining Defendants

Although Plaintiff names Defendants Terri Kennedy, Sparks, Schebinner, John Baldwin,

Thompson, S. Dematta, Johnson, and Evans in his complaint, Plaintiff does not provide any facts

that demonstrate these individuals violated Plaintiff’s constitutional rights. Merely invoking the

name of a potential defendant is not enough to state a claim against a defendant. See Collins v.

Kibort, 143 F.3d 331, 334 (7th Cir. 1998) (“A plaintiff cannot state a claim against a defendant

by including the defendant’s name in the caption.”).

F. Recruitment of Counsel

Plaintiff has also filed a motion that seeks the Court’s assistance in recruiting counsel.

Plaintiff has no constitutional right to counsel, and the Court cannot require an attorney to accept

pro bono appointment in a civil case. The most the Court can do is ask for volunteer counsel. See

Jackson v. County of McLean, 953 F.2d 1070, 1071 (7th Cir. 1992) (holding that although

indigent civil litigants have no constitutional right to counsel, a district court may in its discretion

request counsel to represent indigent civil litigants in certain circumstances). In considering

Plaintiff’s motion for counsel, the Court must ask two questions: “(1) has the indigent plaintiff

made a reasonable attempt to obtain counsel or been effectively precluded from doing so; and if

so, (2) given the difficulty of the case, does the plaintiff appear competent to litigate it himself?”

Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007).

The Court denies Plaintiff’s motion for recruitment of counsel, with leave to renew upon

demonstrating that he has attempted to hire counsel, which typically requires writing to several

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lawyers and attaching the responses received. If Plaintiff files another motion for recruitment of

counsel, he should also provide his education level, prison classes he has completed,

employment history in and out of prison, and prior litigation experience, if any. The Court also

denies as moot Plaintiff’s motion for status [6].

IT IS THEREFORE ORDERED:

1) Pursuant to its merit review of Plaintiff’s complaint under 28 U.S.C. § 1915A, the Court

finds that Plaintiff has alleged enough facts to proceed with his Eighth Amendment

conditions of confinement claim against Defendants Beyers, Brooks, and Mrozek.

Plaintiff’s claim against Beyers, Brooks, and Mrozek are in their individual capacity

only. Any additional claims shall not be included in the case, except at the Court’s

discretion on motion by a party for good cause shown or under Federal Rule of Civil

Procedure 15.

2) The Court directs the Clerk of the Court (“Clerk”) to terminate Defendants Melvin,

Kennedy, Blackard, Skinner, Sellers, Sparks, Simpson, Schebinner, Horton, Baldwin,

John and Jane Doe, John and Jane Doe #2, Thompson, Dematta, Punke, Allen,

Johnson, Evans, and Benton as parties to this case.

3) The Court DENIES Plaintiff’s motion for recruitment of counsel [5] and DENIES as

moot Plaintiff’s motion for status [6].

4) This case is now in the process of service. Plaintiff is advised to wait until counsel has

appeared for Defendants before filing any motions in order to give Defendants notice

and an opportunity to respond to those motions. Motions filed before Defendants’

counsel has filed an appearance will generally be denied as premature. Plaintiff need

not submit any evidence to the Court at this time unless otherwise directed by the

Court.

5) The Court will attempt service on Defendants by mailing each Defendant a waiver of

service. Defendants have sixty days from service to file an Answer. If Defendants have

not filed Answers or appeared through counsel within ninety days of the entry of this

order, Plaintiff may file a motion requesting the status of service. After Defendants

have been served, the Court will enter an order setting discovery and dispositive motion

deadlines.

6) Concerning a Defendant who no longer works at the address provided by Plaintiff, the

entity for whom that Defendant worked while at that address shall submit to the Clerk

said Defendant’s current work address, or, if not known, said Defendant’s forwarding

address. This information shall be used only for effectuating service. Documentation of

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forwarding addresses shall be retained only by the Clerk and shall not be maintained in

the public docket nor disclosed by the Clerk.

7) Defendants shall file an Answer within sixty days of the date the Clerk sends the waiver.

A motion to dismiss is not an answer. The answer should include all defenses

appropriate under the Federal Rules. The answer and subsequent pleadings shall be to

the issues and claims stated in this Order. In general, an answer sets forth Defendants’

positions. The Court does not rule on the merits of those positions unless and until

Defendants file a motion. Therefore, no response to the Answer is necessary or will be

considered.

8) This District uses electronic filing, which means that, after Defendants’ counsel has filed

an appearance, Defendants’ counsel will automatically receive electronic notice of any

motion or other paper filed by Plaintiff with the Clerk. Plaintiff does not need to mail to

Defendants’ counsel copies of motions and other papers that Plaintiff has filed with the

Clerk. However, this does not apply to discovery requests and responses. Discovery

requests and responses are not filed with the Clerk. Plaintiff must mail his discovery

requests and responses directly to Defendants’ counsel. Discovery requests or responses

sent to the Clerk will be returned unfiled unless they are attached to and the subject of

a motion to compel. Discovery does not begin until Defendants’ counsel has filed an

appearance, and the Court has entered a scheduling order, which will explain the

discovery process in more detail.

9) Defendants’ counsel is granted leave to depose Plaintiff at his place of confinement.

Defendants’ counsel shall arrange the time for the deposition Defendant’s counsel shall

arrange the time for the deposition.

10) Plaintiff shall immediately notify the Court, in writing, of any change in his mailing

address and telephone number. Plaintiff’s failure to inform the Court of a change in

mailing address or phone number will result in dismissal of this lawsuit, with prejudice.

11) If a Defendant fails to sign and return a waiver of service to the Clerk within thirty

days after the waiver is sent, the Court will take appropriate steps to effect formal

service through the U.S. Marshals service on that Defendant and will require that

Defendant to pay the full costs of formal service pursuant to Federal Rule of Civil

Procedure 4(d)(2).

12) The Clerk is directed to enter the standard qualified protective order under the Health

Insurance Portability and Accountability Act.

13) The Clerk is directed to attempt service on Defendants under the standard procedures.

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ENTERED November 8, 2019.

s/ Michael M. Mihm

________________________________

MICHAEL M. MIHM

UNITED STATES DISTRICT JUDGE

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