The opinion
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
KYLE SWEARINGEN, )
)
Plaintiffs, )
v. ) No.: 20-cv-1422-JBM
)
TAZEWELL COUNTY JUSTICE CENTER, )
et al., )
)
Defendants. )
MERIT REVIEW
Plaintiff, proceeding pro se, files a complaint under 42 U.S.C. § 1983, alleging various
constitutional violations which occurred during his transportation from the Tazewell County
Justice Center (“Jail”). The case is before the Court for a merit review pursuant to 28 U.S.C. §
1915A. In reviewing the Complaint, the Court accepts the factual allegations as true, liberally
construing them in Plaintiffs’ favor. Turley v. Rednour, 729 F.3d 645, 649-51 (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 and internal quotation marks omitted). While the pleading standard
does not require “detailed factual allegations”, it requires “more than an unadorned, the-
defendant-unlawfully-harmed-me accusation.” Wilson v. Ryker, 451 Fed. Appx. 588, 589 (7th
Cir. 2011) quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
ANALYSIS
Plaintiff is a pretrial detainee whose § 1983 claim is reviewed under the Due Process
Clause of the Fourteenth Amendment. Under the Fourteenth Amendment standard, a detainee
must make an objective showing that the challenged conditions were sufficiently serious and that
Defendants “knew, or should have known, that the condition posed an excessive risk to health or
safety” and “failed to act with reasonable care to mitigate the risk.” Darnell v. Pineiro, 849 F.3d
17, 35 (2d Cir. 2017). This standard is higher than that required to prove negligence, or even
gross negligence and is “akin to reckless disregard.” Miranda v. County of Lake, 900 F.3d 335,
2018 WL 3796482, at *12 (7th Cir. 2018).
The Court notes that Plaintiff indicates that he did not have an opportunity to grieve the
events at the Jail as they occurred during his transfer from the jail to prison. As a result, it is not
clear that Plaintiff had an opportunity to avail himself of the grievance procedures at the jail. See
King v. McCarty, 781 F.3d 889, 895 (7th Cir. 2015), rev’d on other grounds by Henry v. Hulett,
969 F.3d 769 (7th Cir. 2020). “Even if King had been able to write on the same day he was
transferred, it is not plausible that he could have asked for the form, received a response, and
mailed back the completed paperwork before the [jail imposed] five-day deadline had passed.”
As a result, the issue will wait for a more fully developed record.
The Court notes that in his complaint, Plaintiff provides personal information including
his social security number. The Clerk is directed to strike out the social security number found at
[ECF 1 at 6].
MATERIAL FACTS
On September 25, 2020, Plaintiff was transported from the Jail to NRC Stateville with
another detainee, Wendall Simizer. Plaintiff claims that Defendant Jail Commander Harper
shackled Plaintiff’s arms intertwined with that of Mr. Simizer. Plaintiff asserts that this placed
him at risk, and he could have suffered injury if Mr. Simizer had had a seizure, become ill and
expelled body fluids bodily fluids, or if he had acted violently toward Plaintiff. Plaintiff does not
claim, however, that any of these potentialities occurred.
Plaintiff also alleges that Defendant Harper transported the two detainees in cloth
garments which were “paper thin” and tore, exposing the detainees’ “privates.” Plaintiff offers
no additional information as to the size of the tears, how they occurred, how both individuals
came to have torn garments, the extent of the exposed bodily surfaces or whether the exposed
surfaces were seen by others. Plaintiff also does not indicate whether Defendant Harper was
aware of the friable condition of the garments or aware that such exposure was likely to occur.
Plaintiff claims that during the transport, Defendant Officer Marretto slammed on the
brakes, causing Plaintiff to strike the metal casing of the vehicle, causing him headaches.
Plaintiff does not claim that this action was purposeful or indicate a reason for Defendant
Marretto’s sudden application of the brakes. Plaintiff also claims that he was transported without
his legal papers, Bible and parole report needed for an October 14, 2020 parole hearing. Plaintiff
does not indicate whether, between the time of the September 25, 2020 transfer and October 14,
2020 parole board hearing, he was able to access his papers or, if not, whether it caused him
detriment. Plaintiff does not state the relief he seeks, nor request trial by jury.
ANALYSIS
While Plaintiff would assert a claim against Defendant Harper for shackling him to
another during transport, it has been found that shackling a detainee during transport does not
amount to punishment and does not violate the Constitution. Taylor v. Widup, No. 07-301, 2007
WL 3256598, at *5 (N.D. Ind. Nov. 2, 2007). While Plaintiff complains was placed at risk as a
result of the skin-to-skin contact with another, suffering exposure to a risk of harm, without
more, is not compensable. Henderson v. Sheahan, 196 F.3d 839, 848-49 (7th Cir. 1999) citing
Babcock v. White, 102 F.3d 267, 272–73 (7th Cir. 1996) (“suggesting that while a plaintiff may
recover monetary damages under the Eighth Amendment for ‘failure to prevent harm,’ the
plaintiff is not entitled to monetary compensation for the mere ‘failure to prevent exposure to [a]
risk of harm.’” This claim is DISMISSED.
Plaintiff also complains of the paper-thin garments which tore, exposing both his and Mr.
Simizer’s privates. He does not, however, provide enough detail to state a colorable claim. As
noted, is unclear as to the size of the rends in the garments, how they occurred, what portion of
Plaintiff’s body was exposed, the portion of Mr. Simizer’s body which was exposed to Plaintiff,
and whether Plaintiff’s exposed body was seen by others. In addition, Plaintiff offers nothing to
support that Defendant Harper reasonably should have known that both detainees’ garments
would tear, exposing them. This claim is dismissed for the paucity of detail, but Plaintiff will be
given leave to amend.
Plaintiff also claims that he was injured when Defendant Marretto slammed on the
brakes. He does not claim that this was purposeful so as to amount to excessive force. He pleads
nothing to support that Defendant was deliberately indifferent, placing him at risk of serious
bodily injury. It might well be that Defendant’s actions in abruptly braking were done to prevent
a collision, thus sparing Plaintiff injury. This claim is dismissed with prejudice.
As noted, Plaintiff complains that he was not transported with his Bible or legal papers,
including a parole report needed for a hearing. Plaintiff does not allege how long he went
without these items, whether he had the parole report available at the parole hearing and, if not,
whether it adversely affected the outcome. To sufficiently plead such a claim, Plaintiff must
allege “…some quantum of detriment caused by the challenged conduct of state officials
resulting in the interruption and/or delay of the plaintiff's pending or contemplated litigation.”
Shango v. Jurich, 965 F.2d 289, 291 (7th Cir.1992); Jenkins v. Lane, 977 F.2d 266, 268 (7th
Cir.1992). Plaintiff will be given an opportunity to replead this claim with more detail.
Plaintiff also names the Jail which is not amenable to suit under § 1983. Section 1983
applies only to a “person” who acts under color of state law.” Dye v. Wargo, 253 F.3d 296, 299
(7th Cir.2001). See Nava v. Sangamon Cnty. Jail, No. 14-3090, 2014 WL 1320259, at *2 (C.D.
Ill. Apr. 2, 2014), “The ‘Sangamon County Jail’ is not a ‘person’ that may be sued under
§ 1983.” Wright v. Porter County, 2013 WL 1176199, * 2 (N.D.Ind. Mar. 19, 2013)(“Wright
also sues the jail itself, but this is a building, not a ‘person’ or even a policy-making body that
can be sued for constitutional violations.) As a result, the Jail is dismissed with prejudice.
IT IS THEREFORE ORDERED:
1. Plaintiff's complaint is dismissed for failure to state a claim pursuant to Fed. R.
Civ. P. 12(b)(6) and 28 U.S.C. § 1915A. Plaintiff will have 30 days from the entry of this order in
which to replead the identified claim. The Clerk is to provide Plaintiff a form complaint which he
may use to replead his claims, identifying the relief he requests and whether he requests a jury
trial of the matter. If Plaintiff repleads, the filing is to be captioned Amended Complaint and is to
include all of Plaintiff’s claims without reference to a prior pleading. Failure to file an amended
complaint will result in the dismissal of this case, without prejudice, for failure to state a claim.
The Tazewell County Justice Center is DISMISSED with prejudice.
2. The Clerk is directed to obfuscate the social security number found at [ECF 1 at
6].
3. Plaintiff files [7], a motion for recruitment of pro bono counsel but does not
indicate that he attempted to secure counsel on his own. Pruitt v. Mote, 503 F.3d 647, 654-55
(7th Cir. 2007). [7] is DENIED at this time. In the event that Plaintiff renews his motion
for appointment of counsel, he is to provide copies of the letters sent to, and received from,
prospective counsel.
4. Plaintiff files [8], a letter to the Court in which he explains his complaint and
includes a prayer for relief. [8] is rendered MOOT as an impermissible attempt to piecemeal the
complaint. Plaintiff has been given leave to amend and is to include his request for relief in the
amended complaint. Plaintiff is further advised that in the future, if he seeks relief of this Court,
he is to file it in the form of a motion, not a letter.
ENTERED: ____3_/9_/_2_0_2_1_______
_____ s/Joe Billy McDade _____
JOE BILLY McDADE
UNITED STATES DISTRICT JUDGE