# Britton v. Kennedy

> District Court, C.D. Illinois · November 2, 2021

URL: https://www.frixlaw.com/law-library/cases/10136527

## Case

- **Court:** District Court, C.D. Illinois
- **Decided:** November 2, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
THOMAS BRITTON, )
)
Plaintiff, )
v. ) No.: 21-cv-1032-JBM
)
WARDEN MELVIN, et al., )
)
Defendants. )
MERIT REVIEW – AMENDED COMPLAINT
Plaintiff, proceeding pro se, files an amended complaint under 42 U.S.C. § 1983, alleging
inhumane conditions of confinement at the Pontiac Correctional Center (“Pontiac”). The case is
before the Court for a merit review pursuant to 28 U.S.C. § 1915A. In reviewing the amended
complaint, the Court accepts the factual allegations as true, liberally construing them in
Plaintiff's 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).
MATERIAL FACTS
Plaintiff alleges that in August 2016 he was placed in a segregation cell that was infested
with mice, bugs, roaches, and leeches. In September 2016, he was placed in a cell which had
black mold. Plaintiff complained of this to Defendant Warden Melvin and Defendant Blackard
and also complained of a “black soot-like substance” in the water which continues to the present
day. Plaintiff notes that Defendant Melvin left Pontiac in 2017 or 2018 and was replaced by
Defendant Warden Kennedy.
On an unidentified date, Plaintiff personally complained of these conditions to Defendant
Kennedy and wrote numerous grievances which Defendant Kennedy denied as being
emergencies. On unidentified dates, Plaintiff spoke with Defendants Shelton and Prentice

regarding black mold, rodent, and insect infestation and “overall conditions” in his cell. On
another unidentified date, he asked Defendant Brown to move him to a different cell due to these
conditions and the request was denied by “Pontiac command staff.” Plaintiff submitted 14 related
grievances from January 1, 2019 through September 14, 2020 and nothing was done. Plaintiff
pleads that “Pontiac staff” does not provide him adequate cleaning supplies with which to
remove the black mold.
On an unidentified date, Plaintiff notified Defendant’s Gargan, McDowell and Quendo
that he could feel an insect moving inside his ear. Defendants did not believe that the case
represented an emergency, and Plaintiff had to wait 24 hours until seen on July 14, 2020. At that

time, an insect was flushed out of his ear, allegedly resulting in significant hearing loss.
On an unidentified date, Plaintiff was seen in healthcare for a sore throat, breathing
difficulty and the vomiting of blood. He was prescribed antibiotics which did not work, and
returned to his cell.
In October 2020, Plaintiff spoke with the current Warden, Leonta Jackson, complaining
of “health issues” which he had developed due to the complained-of conditions. Defendant
Jackson assured him that the water was potable as “there is a filter in place.” Defendant Jackson
agreed to address the mold in Plaintiff’s cell, but this was not done.
Plaintiff was housed in segregation cell #322 on dates he cannot recall, and complained
to Defendant Lionhart of mold, roaches, and toilet leaks. Plaintiff requested cleaning supplies
and transfer to a different cell, okay all which was refused by Defendant Lionhart.
Plaintiff claims that he underwent surgery on March 13, 2019 or March 14, 2019 and was
placed back in cell #322, despite that he requested to be held overnight in the healthcare unit or

placed in a cell which did not have “issues.” Plaintiff blames Defendant Quendo, asserting that
Defendant knew that Plaintiff had undergone surgery and was susceptible to developing an
infection. Plaintiff does not allege, however, that he developed an infection. Plaintiff requests
money damages and a myriad of injunctive relief to remediate the allegedly unconstitutional
conditions.
ANALYSIS
Plaintiff’s initial complaint, filed January 22, 2021, was dismissed at merit review with
leave to replead as Plaintiff had pled inhumane conditions dating back to 2016. Plaintiff was
informed that that the Illinois two-year statute of limitations precluded his asserting claims which

occurred more than two years prior to date of filing. Wilson v. Garcia, 471 U.S. 261, 276,
(1985); 735 ILCS 5/13-202. In his amended complaint, Plaintiff reasserts claims from 2016 to
the present, claiming that the statute of limitations should be tolled as the complained-of
conditions represent a continuing violation. Plaintiff cites Heard v. Sheahan, 253 F.3d 316, 318
(7th Cir. 2001) which provides that when a plaintiff is subjected to continuing harm, the plaintiff
may recover for all of the harm, even if some of the events occurred outside of the statute of
limitations.
In determining the applicable applicability of the statute of limitations, the Court must
apply federal law to determine when the claim accrued, as the statute of limitations will begin
running as of that date. Wallace v. Kato, 549 U.S. 384, 388 (2007); Brown v. Dart, No. 15-
11835, 2016 WL 6948382, at *3 (N.D. Ill. Nov. 28, 2016), aff'd, 876 F.3d 939 (7th Cir. 2017).
“Although Illinois state law is borrowed and sets the limitations period for the Section 1983
claims, federal law governs the date of accrual.” Id. at *3 (internal citations omitted).
A cause of action typically accrues when “the wrong that injures the plaintiff occurs.”

Brown, 2016 WL 6948382, at *3. See Regains v. City of Chicago, 918 F.3d 529, 533 (7th Cir.
2019) (quoting Wallace, 549 U.S. at 388) (a personal injury action “accrues when ‘the plaintiff
has a complete and present cause of action’ - in other words, when the plaintiff ‘can file suit and
obtain relief.’” See also, CBS Outdoor, Inc. v. Vill. of Plainfield, Ill., 959 F. Supp. 2d 1054,
1061–62 (N.D. Ill. 2013) (“[a] Section 1983 claim accrues “when the plaintiff knows or should
know that his or her constitutional rights have been violated.”) (Internal citation omitted).
Inhumane conditions of confinement will represent a continuing violation if it would be
unreasonable to require a plaintiff to file suit each time he was subjected to the adverse
conditions. Perales v. County of Lasalle, No. 15-10110, 2016 WL 3014815, at *3–4 (N.D. Ill.

May 26, 2016). “The Seventh Circuit has recognized that a continuing violation is a claim where,
among other things, ‘the state actor has a policy or practice that brings with it a fresh violation
each day.’” Loza v. Josephson, No. 16-8111, 2018 WL 4095097, at *3 (N.D. Ill. Aug. 28, 2018)
(citing Savory v. Lyons, 469 F.3d 667, 672-73 (7th Cir. 2006)). Plaintiff has adequately pled a
continuing violation as to the soot-like condition of the water, the black mold, and insect
infestation, where he has alleged that it continued from 2016 through the present day.
Plaintiff may not, however, assert claims as to the water, black mold, and insect
infestation against former Warden Melvin as he is barred from doing so under the Illinois statute
of limitations. This is so, as Plaintiff pleads that Defendant left Pontiac in 2017 or 2018 while the
complaint was not filed until 2021. See Brown v. Godinz, No. 15-522, 2017 WL 2868951, at *4
(N.D. Ill. July 5, 2017). A plaintiff “can delay the start of the limitations period only for as long
as the defendant[ ] had the power to do something about [the plaintiff’s] condition. Thus, for a
§ 1983 claim alleging deliberate indifference to prison conditions, the limitations period begins
to run when either the plaintiff or the defendant leaves the prison, because, at that time, the

defendant loses “power to do something” about the plaintiff’s conditions of incarceration.”
(Internal citations omitted). This claim will proceed as to Defendant Wardens Kennedy and
Jackson.
Plaintiff asserts that on unidentified dates, he complained of the conditions to Defendants
Blackard, Shelton, Prentice and Lionhart. Plaintiff does not plead, however, that the Defendant
officers had the authority to remediate the conditions. See McGill v. Duckworth, 944 F.2d 344,
348–49 (7th Cir. 1991) (plaintiffs may not “tax employees of the prison system with the effects
of circumstances beyond their control.”) While Plaintiff made the request that Defendant Brown
move him to a different cell, he asserts that this request was denied by command staff, not by

Defendant Brown. Defendants Blackard, Shelton, Prentice and Brown are DISMISSED.
Plaintiffs may proceed on the claim that Defendant Lionhart refused to provide him cleaning
supplies while he was housed in segregation cell #322.
Plaintiff asserts against Defendant’s Gargan, McDowell and Quendo, that they delayed
his referral to the healthcare unit, believing that his claim to have a bug in his ear did not
constitute an emergency. This allegation appears to be one for deliberate indifference to a serious
medical need and is misjoined with the underlying conditions of confinement claim. See George
v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). “Unrelated claims against different defendants
belong in different suits.” In other words, “multiple claims against a single party are fine, but
Claim A against Defendant 1 should not be joined with unrelated Claim B against Defendant 2.”
The same applies to Plaintiff’s claim that Defendant Quendo placed him back in the cell after
surgery, “knowing” that he was susceptible to infection; and that Plaintiff was prescribed
antibiotics which did not work when he reported to the healthcare unit with a sore throat,

breathing difficulty and vomiting.
In addition, Plaintiff appears to name “staff” in addition to Defendant Lionhart who
allegedly failed to provide him adequate cleaning supplies. He does not, however, identify these
individuals by name or description or indicate the dates on which these requests were made.
Plaintiff does not provide sufficient detail by which these individuals might be identified, and
they are DISMISSED.
IT IS THEREFORE ORDERED:
1. This case shall proceed solely on the condition of confinement asserted against
Defendants Kennedy, Jackson, and Lionhart. All other claims will not be included in the case,
except in the Court's discretion upon motion by a party for good cause shown, or by leave of

court pursuant to Federal Rule of Civil Procedure 15. Defendants Melvin, Blackard, Brown,
McDowell, Prentice, Shelton, Gargan and Quendo, are DISMISSED.
2. Plaintiff’s motions for status [12], [13] and [14] our rendered MOOT by this
order.
3. The Clerk is directed to send to each Defendant pursuant to this District's internal
procedures: 1) a Notice of Lawsuit and Request for Waiver of Service; 2) a Waiver of Service; 3)
a copy of the Complaint; and 4) a copy of this Order.
4. If a Defendant fails to sign and return a Waiver of Service to the Clerk within 30
days after the Waiver is sent, the Court will take appropriate steps to effect formal service on that
Defendant and will require that Defendant pay the full costs of formal service pursuant to
Federal Rule of Civil Procedure 4(d)(2). If a Defendant no longer works at the address provided
by Plaintiff, the entity for which Defendant worked at the time identified in the Complaint shall
provide to the Clerk Defendant's current work address, or, if not known, Defendant's forwarding
address. This information will be used only for purposes of effecting service. Documentation of

forwarding addresses will be maintained only by the Clerk and shall not be maintained in the
public docket nor disclosed by the Clerk.
5. Defendants shall file an answer within the prescribed by Local Rule. A Motion to
Dismiss is not an answer. The answer it to include all defenses appropriate under the Federal
Rules. The answer and subsequent pleadings are to address the issues and claims identified in
this Order.
6. Plaintiff shall serve upon any Defendant who has been served, but who is not
represented by counsel, a copy of every filing submitted by Plaintiff for consideration by the
Court and shall also file a certificate of service stating the date on which the copy was mailed.

Any paper received by a District Judge or Magistrate Judge that has not been filed with the Clerk
or that fails to include a required certificate of service will be stricken by the Court.
7. Once counsel has appeared for a Defendant, Plaintiff need not send copies of
filings to that Defendant or to that Defendant's counsel. Instead, the Clerk will file Plaintiff's
document electronically and send notice of electronic filing to defense counsel. The notice of
electronic filing shall constitute notice to Defendant pursuant to Local Rule 5.3. If electronic
service on Defendants is not available, Plaintiff will be notified and instructed accordingly.
8. Counsel for Defendants is hereby granted leave to depose Plaintiff at Plaintiff's
place of confinement. Counsel for Defendants shall arrange the time for the depositions.
9. Plaintiff shall immediately notice the Court of any change in mailing address or
phone number. The Clerk is directed to 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.

IT IS FURTHER ORDERED THAT THE CLERK IS DIRECTED TO:
1) ATTEMPT SERVICE ON DEFENDANTS PURSUANT TO THE STANDARD
PROCEDURES;
2) 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,
3) ENTER THE STANDARD QUALIFIED PROTECTIVE ORDER PURSUANT TO
THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT.

LASTLY, IT IS ORDERED THAT IF A DEFENDANT FAILS TO SIGN AND
RETURN A WAIVER OF SERVICE TO THE CLERK WITHIN 30 DAYS AFTER THE
WAIVER IS SENT, THE COURT WILL TAKE APPROPRIATE STEPS TO EFFECT
FORMAL SERVICE THROUGH THE U.S. MARSHAL'S 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).

ENTERED this 2nd day of November, 2021.

s/Joe Billy McDade
JOE BILLY McDADE
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10136527. Public record. Not legal advice.