Thomas v. Weaver

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

FREDERICK THOMAS, #M18843, )

)

Plaintiff, )

)

vs. ) Case No. 19-cv-00865-NJR

)

SGT. WEAVER, )

SGT. MASON, )

MS. McDONALD, )

and WARDEN GOINGS, )

)

Defendants. )

MEMORANDUM AND ORDER

ROSENSTENGEL, Chief Judge:

Plaintiff Frederick Thomas, an inmate in the Illinois Department of Corrections who is

currently incarcerated in Lawrence Correctional Center (“Lawrence”), brings this civil rights

action pro se pursuant to 42 U.S.C. §1983 to address unconstitutional conditions of confinement

at Lawrence. Plaintiff specifically complains about a lack of hot water in his cell. (Doc. 4, pp. 1-

9). He requests money damages and injunctive relief.1 (Id. at pp. 1, 7).

The Complaint is now before the Court for preliminary review under 28 U.S.C. §1915A,

which requires the Court to screen prisoner complaints and filter out non-meritorious claims.

28U.S.C. § 1915A(a). Any portion of a complaint that is legally frivolous or malicious, fails to

state a claim, or asks for money damages from a defendant who by law is immune from such relief

must be dismissed. 28 U.S.C. §1915A(b). The factual allegations of the pro se complaint are

liberally construed. Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).

1Plaintiff includes a request forunspecifiedinjunctive relief in the opening paragraph of the Complaint but

does not mention this request anywhere else.

The Complaint

Plaintiff makes the following allegations in the Complaint: While housed in CellR6-C

Wing-Lower 5 from May 21-28, 2019, Plaintiff had no access to hot water.2 (Doc. 4, pp. 1-7).As

a result, he was unable to properly shower, wash hands, or clean dishes. (Id. at p. 2). Defendants

were aware of Plaintiff’s “general needs” and knew, or should have known, that having no hot

water violated his rightsunder the Eighth Amendment. (Id. at pp. 4-7).

Discussion

Based on the allegations, the Court deems it appropriate to designate a single count in the

pro se Complaint:

Count 1: Eighth Amendment claim against Defendants for denying Plaintiff

access to hot water in his cell (#R6-C Wing-Lower 5) from May 21-

28, 2019.

The parties and the Court will use these designations in all future pleadings and orders, unless

otherwise directed by this Court. Any claim mentioned in the Complaint but not addressed

herein isconsidered dismissed without prejudice under Twombly.3

In evaluating an Eighth Amendmentclaimfor unconstitutional conditions of confinement,

the Court conducts an objective and a subjective inquiry. Farmer v. Brennan, 511 U.S. 825, 834

(1994).To satisfy theobjectiveinquiry,the alleged deprivation must besufficiently serious.Id.at

837. To satisfy the subjective inquiry, the defendants must act with deliberate indifference.

Plaintiff’s claim satisfies neither requirement.

Conditions are sufficiently serious if they deprive an inmate of the minimal civilized

measure of life’s necessities, such as food, clothing, heat, shelter, bedding, cleaning supplies, and

2 Plaintiff also mentions that he is now housed in a cell lacking hot water, a working toilet, and an

operationalsink, but this claim forms the basisof anotherComplainthe filed to address conditions inCell

R6-CL-05. Thomas v. Weaver, et al., No. 19-cv-00966-NJR (S.D. Ill. filed Aug. 7, 2019).

3See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

hygiene items.Gillis v. Litscher, 468 F.3d 488, 493 (7th Cir. 2006) (collecting cases). The Seventh

Circuit has made clear that an “adverse condition of confinement, if endured over a significant

time, can become an Eighth Amendment violation even if it would not be impermissible if it were

only a short-term problem.” Knight v. Wiseman, 590 F.3d 458, 463 (7th Cir. 2009). But a week

without hot water amounts to an inconvenience and nothing more. Prisoners do not have a

constitutional right to hot water. Hopkins v. Klindworth, 556 F. App’x 497 (7th Cir. 2014) (district

court properly dismissed claim regarding placement in cell lacking hot water) (citing Lopez v.

Robinson, 914 F.2d 486, 492 (4th Cir. 1990) (“[T]here is no clearly established, sufficiently

contoured, right to hot showers in prison.”)).This condition issimplynot serious enough to support

a claim.

Moreover, the allegations do not suggest that Defendants even knew about the lack of hot

water inCell R6-C Wing-Lower 5. Plaintiff makes no allegation that he notified them of the water

problem, requested repair of it, or requested repair of any related issue. Absent any allegations of

Defendants’ actual knowledge or intentional disregard of the water problem, Plaintiff cannot

demonstrate that they were deliberately indifferent to it. Pepper v. Village of Oak Park, 430 F.3d

809, 810 (7th Cir. 2005) (individual participation in a constitutional deprivation required for

Section 1983 liabilityto attach).

Pending Motion

Plaintiff’s Motion for Recruitment of Counsel (Doc. 3) is DENIED without prejudice,4

based on his failure to demonstrate reasonable efforts to locate counsel on his own before seeking

the Court’s assistance or identify any significant impediments to self-representation beyond a

limited education.

4 See Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007) (articulating factors district court should consider

when presented with a request for counsel).

Disposition

IT IS ORDERED that the Complaint (including COUNT 1) is DISMISSED without

prejudice for failure to state a claim upon which relief may be granted.

IT IS ORDERED that DefendantsSGT. WEAVER, SGT. MASON, MS. McDONALD,

and C/O THRASHER are DISMISSED without prejudice from the action.

Plaintiff is GRANTEDleave to file a “First Amended Complaint” on or beforeNovember

1, 2019. Should Plaintiff fail to file a First Amended Complaint within the allotted time or

consistent with the instructions set forth in this Order, the entire case shall be dismissed with

prejudice for failure to comply with a court order and/or for failure to prosecute his claims. FED.

R.CIV.P.41(b); Ladien v. Astrachan, 128 F.3d 1051 (7th Cir. 1997); Johnson v. Kamminga, 34

F.3d 466 (7th Cir. 1994); 28 U.S.C. §1915(e)(2). The dismissal shall also count as one of

Plaintiff’s three allotted “strikes” under 28 U.S.C. §1915(g).

It is strongly recommended that Plaintiff use the civil rights complaint form designed for

use in this District. He should label the form, “First Amended Complaint,” and he should use the

case number for this action(No. 19-cv-00866-NJR). To enable Plaintiffto comply with this Order,

the CLERK is DIRECTEDto mail Plaintiff a blank civil rights complaint form.

An amended complaint generally supersedes and replaces the original complaint, rendering

the original complaint void. See Flannery v. Recording Indus. Ass’n of Am., 354 F.3d 632, 638 n.

1 (7th Cir. 2004). The First Amended Complaint must stand on its own without reference to any

previous pleading. Plaintiff must re-file any exhibits he wishes the Court to consider. The First

Amended Complaint is also subject to review pursuant to 28U.S.C. §1915A.

Plaintiff is further ADVISED that his obligation to pay the filing fee for this action was

incurred at the time the action was filed, thus the filing fee remains due and payable, regardless of

whether Plaintiff files a First Amended Complaint. 28 U.S.C. § 1915(b)(1); Lucien v. Jockisch,

133 F.3d 464, 467 (7th Cir. 1998).

Finally, Plaintiff is ADVISED that he is under a continuing obligation to keep the Clerk of

Court and each opposing party informed of any change in his address; the Court will not

independently investigate his whereabouts. This shall be done in writing and not later than 7 days

after a transfer or other change in address occurs. Failure to comply with this Order will cause a

delay in the transmission of court documents and may result in dismissal of this action for want of

prosecution. See FED. R. Civ. P. 41(b).

IT IS SO ORDERED.

DATED: 10/4/2019 Mawes (cuit D

NANCY J. ROSENSTENGEL

Chief U.S. District Judge