Ezebuiroh v. Doe

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

JERRY B. EZEBUIROH, #19059152, )

)

Plaintiff, )

)

vs. ) Case No. 19-cv-01042-JPG

)

JOHN DOE #1, )

)

Defendant. )

MEMORANDUM AND ORDER

GILBERT, District Judge:

This matter is before the Court for preliminary review of the Amended Complaint

(Doc. 23) filed by Plaintiff Jerry B. Ezebuiroh on December 16, 2019. Plaintiff, a detainee at

Marion County Law Enforcement Center, brings this civil rights action pursuant to 42 U.S.C.

§ 1983 to challenge the conditions of his confinement at Marion County Law Enforcement Center.

(Id. at pp. 1-8). Plaintiff seeks money damages and injunctive relief.1 (Id. at p. 9).

The Amended Complaint is subject to review under 28 U.S.C. § 1915A, which requires the

Court to screen prisoner complaints and filter out non-meritorious claims. See 28 U.S.C.

§ 1915A(a). Any portion of a complaint that is legally frivolous, malicious, fails to state a claim

upon which relief may be granted, 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).

Amended Complaint

Plaintiff makes the following allegations in the Amended Complaint (Doc. 23, pp. 1-8):

Plaintiff has been detained at Marion County Law Enforcement Center since July 27, 2019. (Id.

1 The Court construes this request as one for injunctive relief at the close of the case.

at pp. 6-8). Since then, he has been housed in a holding cell that is smeared with feces and infested

with mice. (Id.). He has been allowed four showers in four months, and his cell has no running

water. (Id.). Plaintiff has also been forced to sleep on a moldy mat and eat on a food tray from

the “sick floor.” (Id.).

Plaintiff attempted to address these conditions by speaking directly to Jail Administrator

John Doe. (Id. at pp. 4-5). He also filed written grievances with Doe. In response, Doe instructed

his employees to “find a blind spot [and] trash [Plaintiff’s] grievance[s].” (Id. at p. 5). Plaintiff

also got his “ass beat” for complaining. (Id. at p. 4).

Based on the allegations, the Court finds it convenient to organize the pro se Amended

Complaint into the following enumerated Counts:

Count 1: Fourteenth Amendment claim against Jail Administrator Doe for subjecting

Plaintiff to unconstitutional conditions of confinement.

Count 2: Fourteenth Amendment claim against Jail Administrator Doe for subjecting

Plaintiff to the unauthorized use of force when he complained about the

conditions of his confinement.

Count 3: First Amendment claim against Jail Administrator Doe for retaliating

against Plaintiff when he complained about the conditions of his

confinement by subjecting him to the unauthorized use of force.

Any claim that is mentioned in the Amended Complaint but not addressed herein is

considered dismissed without prejudice as inadequately pled under Twombly.2

Plaintiff appears to be a pretrial detainee, so his claims in Counts 1 and 2 are analyzed

under the Fourteenth Amendment Due Process Clause. The Fourteenth Amendment entitles him

to more robust protections than the Eighth Amendment. However, Count 1 survives screening

under either standard. See Hardeman v. Curran, 933 F.3d 816, 823 (7th Cir. 2019) (articulating

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

different standards for conditions claims brought by pretrial detainees and prisoners). This claim

shall receive further review against Jail Administrator John Doe.

Counts 2 and 3 do not survive preliminary review because Plaintiff does not allege that Jail

Administrator Doe was involved in either constitutional deprivation. Section 1983 “creates a cause

of action based on personal liability and predicated upon fault; thus liability does not attach unless

the individual defendant caused or participated in a constitutional violation.” Vance v. Peters, 97

F.3d 987, 991 (7th Cir. 1996). Plaintiff must make plausible allegations against an individual,

and he has failed to do so in connection with either of these claims. See Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009); Twombly, 550 U.S. at 555 (2007). Accordingly, Counts 2 and 3 shall be

dismissed without prejudice for failure to state a claim.

Identification of Unknown Defendant

Plaintiff shall be allowed to proceed with Count 1 against Jail Administrator John Doe.

However, he must identify this defendant with particularity before service of the Amended

Complaint can be made on him. Plaintiff will have the opportunity to engage in limited discovery

to ascertain the identity of this individual. Rodriguez, 577 F.3d at 832. The Marion County Sheriff

will be added as a defendant in order to assist in identifying this individual. Once the name is

discovered, Plaintiff must file a motion to substitute the newly-identified defendant in place of Jail

Administrator John Doe in the caption and Amended Complaint.

Pending Motions

A. Motion for Recruitment of Counsel (Doc. 25)

Plaintiff’s Motion for Recruitment of Counsel is GRANTED. Plaintiff has demonstrated

reasonable, but unsuccessful, efforts to find counsel on his own before seeking the Court’s help.

His limited education, medical issue(s), and mental health condition(s) prevent him from litigating

this matter pro se, and the guiding hand of counsel is necessary to move this matter forward. The

Court will randomly select counsel through the Case Management/Electronic Case Filing

(“CM/ECF”) system to represent Plaintiff in propounding discovery aimed at identifying the

unknown defendant and otherwise representing Plaintiff in litigating this case.

B. Miscellaneous Motions (Docs. 24, 26, and 27)

Plaintiff’s other motions—seeking in forma pauperis status (see Doc. 24) (but see Doc. 4)

(granting IFP status), requesting miscellaneous relief (Doc. 26), and requesting review of video

footage of Plaintiff timely filing an amended complaint (Doc. 27)—are DENIED as MOOT.

Disposition

The CLERK is directed to ADD the MARION COUNTY SHERIFF (official capacity

only) to the docket for the purpose of identifying Jail Administrator John Doe.

IT IS ORDERED that the Amended Complaint (Doc. 23) survives screening, and

COUNT 1 will receive further review against Defendant JOHN DOE (Jail Administrator).

However, COUNTS 2 and 3 are DISMISSED without prejudice for failure to state a claim.

Pursuant to Administrative Order No. 244, Defendant John Doe must only respond to the

issues stated in this Merits Review Order.

The Clerk of Court shall prepare for Defendant MARION COUNTY SHERIFF (official

capacity only): (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of a Summons),

and (2) Form 6 (Waiver of Service of Summons). The Clerk is DIRECTED to mail these forms,

a copy of the Amended Complaint (Doc. 23), and this Memorandum and Order to Defendant’s

place of employment. If Defendant fails to sign and return the Waiver of Service of Summons

(Form 6) to the Clerk within 30 days from the date the forms were sent, the Clerk shall take

appropriate steps to effect formal service on Defendant, and the Court will require Defendant to

pay the full costs of formal service, to the extent authorized by the Federal Rules of Civil

Procedure. Marion County Sheriff need not answer or otherwise respond to the Amended

Complaint; he/she must only enter his/her appearance and will receive further instructions

on discovery at a later date.

Service shall not be made on Defendant JOHN DOE until Plaintiff has identified this

individual by name in a properly filed motion for substitution of parties. Plaintiff is ADVISED

that it is his responsibility to provide the Court with the name and service address of these

individuals.

Recruitment of Counsel

In accordance with 28 U.S.C. § 1915(e)(1) and Local Rule(s) 83.1(i) and 83.9(b), attorney

Joshua Dean Shirley of Lawler Brown Law Firm located in Marion, Illinois, is ASSIGNED to

represent Plaintiff in this civil rights case. On or before January 21, 2020, assigned counsel shall

enter his/her appearance in this case. Attorney Shirley is free to share responsibilities with an

associate who is also admitted to practice in this district court. Assigned counsel, however, must

enter the case and make first contact with Plaintiff, explaining that an associate may also be

working on the case. Plaintiff should wait for his attorney to contact him in order to allow counsel

an opportunity to review the court file.

The Clerk of Court is DIRECTED to transmit this Order and copies of the docket sheet

and Doc. 23 to attorney Shirley. The electronic case file is available through CM-ECF.

Now that counsel has been assigned, Plaintiff shall not personally file anything in this case,

except a pleading that asks that she be allowed to have counsel withdraw from representation. If

counsel is allowed to withdraw at the request of Plaintiff, there is no guarantee the Court will

appoint other counsel to represent Plaintiff.

Counsel is ADVISED to consult Local Rules 83.8-83.14 regarding pro bono procedures.

Plaintiff and his counsel are ADVISED that, because Plaintiff is proceeding in forma

pauperis, if there is a monetary recovery in this case (either by verdict or settlement), any unpaid

out-of-pocket costs must be paid from the proceeds. See SDIL-LR 3.1(c)(1). If there is no

recovery in the case (or the costs exceed any recovery), the Court has the discretion to reimburse

expenses.

Section 2.6 of this Court’s Plan for the Administration of the District Court Fund provides

for a degree of reimbursement of pro bono counsel’s out-of-pocket expenses, as funds are

available. The Plan can be found on the Court’s website, as well as the form motion for out-of-

pocket expenses and an Authorization/Certification for Reimbursement. Any motion for

reimbursement must be made within 30 days from the entry of judgment, or reimbursement will

be waived. See SDIL-LR 83.13. The funds available for this purpose are limited, however, and

counsel should use the utmost care when incurring out-of-pocket costs. In no event will funds be

reimbursed if the expenditure is found to be without a proper basis. The Court has no authority to

pay attorney’s fees in this case. No portion of a partial filing fee assessed pursuant to 28 U.S.C.

§ 1915 will be reimbursed. Counsel may be reimbursed for PACER fees for this case.

The district court has entered into an agreement with attorney James P. Chapman and the

Illinois Institute for Community Law to consult with lawyers on issues in these cases, including

substantive and procedural questions (both legal and practical) and dealing with the client.

Mr. Chapman can be reached by phone at (312) 593-6998 or email at JamesPChapman@aol.com.

His services are available to counsel free of charge, as long as counsel is representing a prisoner

pro bono on a case in the district. In addition, the Court’s website, www.ilsd.uscourts.gov,

includes a guide for attorneys which is available as a resource. It is listed under “Rules and Forms”

as “Guide for Attorneys Recruited to Represent Plaintiffs in Section 1983 Cases.” The Court

encourages appointed counsel to consult it and Mr. Chapman as needed.

As of this date, Plaintiff’s contact information is:

JERRY B. EZEBUIROH, #19059152

Marion County Law Enforcement Center

204 North Washington Avenue

Salem, IL 62881

IT IS SO ORDERED.

DATED: 12/20/2019

s/J. Phil Gilbert

J. PHIL GILBERT

United States District Judge

Notice to Plaintiff

The Court will take the necessary steps to notify the appropriate defendants of your lawsuit

and serve them with a copy of your complaint. After service has been achieved, the defendants

will enter their appearance and file an Answer to your Complaint. It will likely take at least 60

days from the date of this Order to receive the defendants’ Answer, but it is entirely possible that

it will take 90 days or more. When all the defendants have filed Answers, the Court will enter a

Scheduling Order containing important information on deadlines, discovery, and procedures.

Plaintiff is advised to wait until counsel has appeared for the defendants before filing any motions,

to give the defendants notice and an opportunity to respond to those motions. Motions filed before

defendants’ counsel has filed an appearance will generally be denied as premature. Plaintiff need

not submit any evidence to the Court at this time, unless specifically directed to do so.