Fountain v. Hamilton

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

DONALD FOUNTAIN, )

Plaintiff, )

)

vs. ) Case No. 22-4055

)

ROB JEFFREYS, 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.

Plaintiff, a pro se prisoner, claims Defendants Illinois Department of Corrections

(IDOC) Director Rob Jeffreys, East Moline Correctional Center (EMCC) Warden Robert

Hamilton, Wexford Health Sources, Unspecified Medical Technicians, Freedom of

Information Officer Maggie Meikle, and Unspecified Medical Staff violated his

constitutional rights.

Plaintiff says on March 18, 2020, a memorandum was issued to every inmate

stating daily temperature checks were mandatory. Nonetheless, there were no

temperature checks “until there was a suspected case of COVID-19.” (Comp., p. 3). On

October 3, 2020. Plaintiff filed a grievance complaining about the failure to check inmate

temperatures and the grievance officer advised Plaintiff the checks were not mandatory.

Plaintiff also claims Inmate V. left the facility for an outside medical writ on

August 10, 2020, but the facility let him return to general population when he returned

without requiring a quarantine period or COVID test. Inmate H. went to the Health

Care unit on August 24, 2020 complaining of COVID symptoms, but he was also

allowed to return to the housing unit without any testing or treatment. On August 30,

2020, D Wing was placed on quarantine status because Inmate B. had COVID

symptoms.

On September 1, 2020, Plaintiff and his cell mate had temperature checks.

Plaintiff claims his cell mate’s temperature was over 100 degrees and he tested positive

for COVID. Plaintiff received a COVID test, but he does not state the results. Instead,

Plaintiff was moved to B wing for quarantine. Inmates V. and H. later tested positive

on September 4, 2020.

Plaintiff claims the cells in Unit B were unsanitary and other inmates in the unit

had COVID symptoms. Three days later Plaintiff was again tested, but he again fails to

provide the results.

Finally, Plaintiff says from August 30, 2020 to October of 2020, the medical

technicians who took inmate temperatures “perpetuated lies by altering medical

records stating that the people on D wing were all asymptomatic.” (Comp., p. 5).

Plaintiff does not explain the basis of this claim or why he believes staff was lying about

medical records or how this directly impacted him.

It is clear Plaintiff does not believe EMCC officials properly addressed the

COVID- 19 pandemic. However, it is difficult to decipher Plaintiff’s specific claims

from his complaint. First, it is not clear who Plaintiff intended to name as a Defendant.

Plaintiff has one list in the caption of his complaint, a separate list in the portion of the

complaint which asks the Plaintiff to identify Defendants, and a third list in the body of

his complaint.

Second, Plaintiff makes no mention of some of the intended Defendants in the

body of his complaint. See Kuhn v. Milwaukee County, 59 F. App'x 148, 150 (7th Cir. 2003)

(merely naming defendants in the caption of a complaint does not state a claim against

them); Potter v. Clark, 497 F. 2d. 1206, 1207 (7th Cir. 1974). Even if Plaintiff does not

know the names of some individuals, he must provide some identifying information

such as a physical description, job title, and shift worked.

Third, it is not clear how some of the Defendants are involved in his claims. To

hold an individual liable under Section 1983, Plaintiff must “show that the defendants

were personally responsible for the deprivation of their rights.” Wilson v. Warren Cty.,

Illinois, 830 F.3d 464, 469 (7th Cir. 2016). “A defendant is personally responsible ‘if the

conduct causing the constitutional deprivation occurs at his direction or with his

knowledge and consent.’” Id. quoting Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir.

1995). In addition, the mere fact that a defendant was a supervisor is insufficient to

establish liability because the doctrine of respondeat superior (supervisor liability) does

not apply to actions filed under 42 USC §1983. See Smith v. Gomez, 550 F.3d 613, 616 (7th

Cir. 2008)(supervisor liability not permitted under § 1983); Pacelli v. DeVito, 972 F.2d

871, 877 (7th Cir. 1992)(supervisors are not liable for the errors of their subordinates).

Even if Plaintiff does not know the names of some Defendants, he must explain how

they are involved in Plaintiff’s claims. For instance, when did they meet with Plaintiff

and what happened?

In addition, it is not clear how Plaintiff’s complaints about the COVID

procedures impacted Plaintiff or even when or if he contracted the virus. If Plaintiff did

test positive for COVID, when did this occur and how is it related to his allegations?

See i.e. May v. Detrana, 2021 WL 3493510, at *2–3 (E.D.Wis. Aug. 9, 2021)(inmate’s claim

was “too speculative to support a reasonable conclusion that unnamed officials actually

knew (the inmate) was at a substantial risk of contracting COVID.”).

Finally, Plaintiff has attached exhibits to his complaint, but he must clearly state

his intended claims in the body of his complaint and not rely on the Court or

Defendants to interpret his claims from his exhibits.

Therefore, Plaintiff’s complaint is dismissed pursuant to 28 U.S.C. §1915A for

failure to clearly articulate a claim upon which relief could be granted and as a violation

of Federal Rule of Civil Procedure 8 which requires a short and plain statement of the

claim showing the pleader is entitled to relief.

The Court will allow Plaintiff an opportunity to file an amended complaint

clarifying his claims. Plaintiff should clearly state his Defendants in the list of

Defendants portion of his complaint. Plaintiff must clearly state when the events

occurred, who was involved, and how they impacted the Plaintiff.

Plaintiff has also filed a Motion for Appointment of Counsel. [5]. Plaintiff does

not have a constitutional or statutory right to counsel in this case. In considering

Plaintiff’s motion, the Court must consider two questions. For instance, “has the

indigent plaintiff made a reasonable attempt to obtain counsel or been effectively

precluded from doing so.” Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007), citing Farmer

v. Haas, 990 F.2d 319, 322 (7th Cir. 1993). “This is a mandatory, threshold inquiry that

must be determined before moving to the second inquiry.” Eagan v. Dempsey, 2021 WL

456002, at *8 (7th Cir. 2021); citing Davis v. Moroney, 857 F.3d 748, 753 (7th Cir. 2017).

Plaintiff has not met this requirement such as providing a list of attorneys contacted or

copies of letters sent or received. His motion is therefore denied with leave to refile. [5].

Finally, the Court notes on March 23, 2022, Plaintiff was ordered to pay an initial

partial filing fee of $53.39 within 30 days. See March 23, 2022 Text Order. To date,

Plaintiff has paid only $3.40. On its own motion, the Court will extend the deadline for

paying this fee to July 12, 2022. Plaintiff must either pay the remainder of the initial

partial filing fee or explain why he is unable to do so.

IT IS THEREFORE ORDERED:

1) Plaintiff’s complaint is dismissed pursuant to 28 U.S.C. §1915A for failure to

clearly articulate a claim upon which relief could be granted and as a violation of

Federal Rule of Civil Procedure 8 which requires a short and plain statement of

the claim showing the pleader is entitled to relief.

2) Plaintiff must file an amended complaint clarifying his claims in compliance

with this order on or before July 13, 2022. If Plaintiff does not file an amended

complaint on or before July 13, 2022, his case will be dismissed with prejudice.

3) Plaintiff’s motion for appointment of counsel is denied with leave to renew

after Plaintiff clarifies his claims [5].

4) Plaintiff must either pay the remainder of the initial partial filing fee on or

before July 13, 2022, or explain why he was unable to pay this fee. If Plaintiff

claims he could not pay the fee, he must include Trust Fund Ledgers

demonstrating he was unable to pay the fee.

5) The Clerk is to provide Plaintiff with a blank complaint form to assist him and

reset the internal merit review deadline.

Entered this 22nd day of June, 2022.

s/James E. Shadid

_________________________________________

JAMES E. SHADID

UNITED STATES DISTRICT JUDGE