plaintiff who “alleged direct physical manifestation of the harm caused by the poor ventilation”…”satisfied the objective prong of the test for an Eighth Amendment violation.”
How later courts described this case
- plaintiff who “alleged direct physical manifestation of the harm caused by the poor ventilation”…”satisfied the objective prong of the test for an Eighth Amendment violation.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
LAURENCE CLEVENGER, )
Plaintiff, )
)
vs. ) Case No. 20-2278
)
MACON COUNTY JAIL, et.al., )
Defendants. )
MERIT REVIEW ORDER
JAMES E. SHADID, U.S. District Judge:
This cause is before the Court for merit review of the Plaintiff’s complaint. The
Court is required by 28 U.S.C. §1915A to “screen” the Plaintiff’s complaint, and through
such process to 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.
The pro se Plaintiff has filed a handwritten complaint pursuant to 42 U.S.C.§1983
against the Macon County Jail and the Decatur Public Building Commission. Plaintiff
says the ceilings and walls at the Macon County Jail are covered in “filth” to the point
that it impacts his ability to breath. (Comp, p. 2). Plaintiff’s motion for appointment of
counsel also refers to “thick black matter” spurting from the air vents. (Plain. Mot, [4],
p. 3). Plaintiff wakes up “at night sneezing, wheezing, and coughing to the point that I
have to drink water to calm….down.” (Comp, p. 3). Detainees are locked in their cells
for fourteen hours each day, and the dayroom area does not have enough seats forcing
detainees to sit on the dirty floor. Plaintiff further alleges he lived in these conditions for
at least two months.
Plaintiff has filed grievances and Sergeant Flannery claimed he would take care
of the problems, but nothing has been done. Plaintiff has attached a letter received from
Assistant Jail Superintendent Flannery stating he will send a work order to the Decatur
Public Building Commission concerning the maintenance issues addressed in Plaintiff’s
complaint. (Comp., p. 6).
The Court first notes Plaintiff has not identified the appropriate Defendants. For
instance, the Macon County Jail is not a proper Defendant since it is a building and not
a person capable of being sued pursuant to 42 U.S.C. §1983. See White v. Knight, 710 F.
App'x 260, 262 (7th Cir. 2018); Laughman v. Baker, 2020 WL 5653397, at *1 (S.D.Ind. Sept.
23, 2020). In addition, it is unclear how a Public Building Commission would be
responsible for Plaintiff’s claims. Plaintiff’s complaint does not allege maintenance
problems, but instead alleges his cell was covered in “filth.” (Comp, p. 2). Cleaning cells
or providing cleaning supplies would be the responsibility of those at the jail on a daily
basis. Since Plaintiff has identified Jail Administrator Sergeant Flannery in the body of
his complaint, the Court will add the Sergeant as a Defendant.
Plaintiff also does not state whether he was a pretrial detainee at the time of his
allegations or whether he was a convicted prisoner. For instance, if Plaintiff was
already incarcerated in the Illinois Department of Corrections on another charge, but he
was transferred to the Macon County Jail to face a new charge, then he would be
considered a convicted prisoner. If Plaintiff was arrested, but not convicted of any
crime, he would be a pretrial detainee. Plaintiff must clarify his status because this will
determine whether the Eighth Amendment or the Fourteenth Amendment applies to
his claims. See Hardeman v. Curran, 933 F.3d 816, 821-22 (7th Cir. 2019), Farmer v.
Brennan, 511 U.S. 825, 834-35 (1994).
Under either standard, Plaintiff must be able to demonstrate the living
conditions alleged are objectively serious. See Sibley v. Dart, 435 F.Supp.3d 920, 926
(N.D.Ill. March 18, 2019). Since Plaintiff claims the conditions had a direct impact on his
ability to breath, the Plaintiff has stated a claim for the purposes of notice pleading
based on the dirty conditions, poor ventilation, and overcrowding. See Board v. Farnham,
394 F.3d 469, 486 (7th Cir. 2005)(plaintiff who “alleged direct physical manifestation
of the harm caused by the poor ventilation”…”satisfied the objective prong of the test
for an Eighth Amendment violation.”).
Plaintiff has also filed a motion for appointment of counsel. [4]. Plaintiff has no
constitutional right to the appointment of 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).
In considering Plaintiff’s motion, 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),
citing Farmer v. Haas, 990 F.2d 319, 322 (7th Cir. 1993).
Plaintiff claims his family attempted to find counsel for him when then contacted
one law firm. The Court does not believe this is a reasonable attempt to find counsel.
The motion is denied. [4]. Plaintiff may refile his motion with a list of other attorneys
contacted or copies of letters sent or received to counsel.
IT IS THEREFORE ORDERED:
1) Pursuant to its merit review of the complaint under 28 U.S.C. § 1915A, the
Court finds Plaintiff has alleged Defendant Macon County Jail Administrator
Sergeant Flannery violated Plaintiff’s constitutional rights based on his living
conditions from at least August to October of 2020 including dirty conditions,
poor ventilation, and overcrowding. The claim is stated against the Defendant in
his individual capacities 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 pursuant to Federal Rule of Civil Procedure 15.
2) This case is now in the process of service. Plaintiff is advised to wait until
counsel has appeared for Defendant before filing any motions, in order to give
Defendant notice and an opportunity to respond to those motions. Motions filed
before Defendant’s 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.
3) The Court will attempt service on Defendant by mailing Defendant a waiver of
service. Defendant has 60 days from service to file an Answer. If Defendant has
not filed an Answer or appeared through counsel within 90 days of the entry of
this order, Plaintiff may file a motion requesting the status of service. After
Defendant has been served, the Court will enter an order setting discovery and
dispositive motion deadlines.
4) With respect to a Defendant who no longer works at the address provided by
Plaintiff, the entity for whom that Defendant worked while at that address shall
provide 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 forwarding addresses shall be retained
only by the Clerk and shall not be maintained in the public docket nor disclosed
by the Clerk.
5) Defendant shall file an answer within 60 days of the date the waiver is sent by
the Clerk. 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 Defendant’s positions. The Court does not rule on the merits of
those positions unless and until a motion is filed by Defendant. Therefore, no
response to the answer is necessary or will be considered.
6) Once counsel has appeared for a Defendant, Plaintiff need not send copies of
his filings to that Defendant or to that Defendant's counsel. Instead, the Clerk will
file Plaintiff's document electronically and send a notice of electronic filing to
defense counsel. The notice of electronic filing shall constitute service on
Defendant pursuant to Local Rule 5.3. If electronic service on Defendant is not
available, Plaintiff will be notified and instructed accordingly.
7) Counsel for Defendant is hereby granted leave to depose Plaintiff at his place of
confinement. Counsel for Defendant shall arrange the time for the deposition.
8) Plaintiff shall immediately notify the Court, in writing, of any change in his
mailing address and telephone number. Plaintiff's failure to notify the Court of a
change in mailing address or phone number will result in dismissal of this lawsuit,
with prejudice.
9) Within 10 days of receiving from Defendant’s counsel an authorization to
release medical records, Plaintiff is directed to sign and return the authorization
to Defendant’s Counsel.
IT IS FURTHER ORDERED THAT THE CLERK IS DIRECTED TO:
1) Add Defendant Jail Administrator Sergeant Flannery; 2) Dismiss
Defendants Macon County Jail and Decatur Public Building Commission; 3)
Deny Plaintiff’s motion for appointment of counsel with leave to renew, [4]:
4) Attempt service on Defendant pursuant to the standard procedures; 5) Set an
internal court deadline 60 days from the entry of this order for the Court to
check on the status of service and enter scheduling deadlines; and 4) Enter the
Court's standard qualified protective order pursuant to the Health Insurance
Portability and Accountability Act.
ENTERED this 8th day of December, 2020.
s/ James E. Shadid
_________________________________________
JAMES E. SHADID
UNITED STATES DISTRICT JUDGE