Fleming v. Pritzker

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

RICO CLARK,

SHELBY TURNER, and

NATHANIAL FLEMING,

Plaintiff, Case No. 20-cv-01133-SPM

v.

J.B. PRITZKER,

ROB JEFFREYS,

WARDEN WILLIS,

WEXFORD HEALTH SOURCES, INC.,

JOHN DOE 1, and

HINTON,

Defendants.

MEMORANDUM AND ORDER

MCGLYNN, District Judge:

Plaintiffs Rico Clark, Shelby Turner, and Nathanial Fleming, inmates of the Illinois

Department of Corrections who are currently incarcerated at Menard Correctional Center

(“Menard”), bring this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiffs claim that they

have been subjected to unconstitutional conditions of confinement and denied adequate health care

during the COVID-19 pandemic. (Doc. 1). Plaintiffs seek injunctive and monetary relief. Along

with the Complaint, Plaintiffs have filed a Motion for Preliminary Injunction. (Doc. 2).

Before addressing the request for injunctive relief, the Court must first review the

Complaint under 28 U.S.C. § 1915A. Under Section 1915A, any portion of a complaint that is

legally frivolous, malicious, fails to state a claim upon which relief may be granted, or requests

money damages from a defendant who by law is immune from such relief must be dismissed.

28 U.S.C. § 1915A(b). At this juncture, the factual allegations of the pro se Complaint are to be

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

PRELIMINARY MATTER – FILING FEE

Although the Plaintiffs have brought their claims jointly in a single lawsuit, group litigation

does not relieve any prisoner of the duties imposed upon each Plaintiff under the Prisoner

Litigation Reform Act, including the duty to pay the full amount of the filing fees, either in

installments or in full if the circumstances require it. Boriboune v. Berge, 391 F.3d 852 (7th Cir.

2004). At this time, none of the Plaintiffs have paid the $400 filing fee in this case or sought leave

to proceed in forma pauperis (“IFP”). See 28 U.S.C. § 1914(a). As a matter of course, the Clerk

of Court has sent notice that Plaintiffs have 30 days to either pay the fee or move for IFP status.

(Doc. 6). Regardless, because Plaintiffs seek immediate emergency injunctive relief, the Court will

take up the case now. See Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680 (7th Cir. 2012).

The Plaintiffs must, however, still meet their obligations with regard to the filing fee. To be clear,

each Plaintiff must either pay the $400 filing fee or submit a motion for leave to proceed IFP in

this action, together with his inmate trust fund account statement for the six-month period prior to

the filing date of this case no later than November 30, 2020. If any Plaintiff fails to either pay or

submit an IFP motion, he will be dismissed from this action for failure to comply with an order of

the Court. See FED. R. CIV. P. 41(b).

THE COMPLAINT

Plaintiffs make the following allegations: Menard is overcrowded, and Wexford Health

Sources, Inc. (“Wexford”), the company contracted to provide health care to inmates within IDOC,

deliberately understaffs the health care unit at Menard in an effort to save money. (Doc. 1, p. 5, 9,

41-42). Wexford also attempts to save money by not adequately training medical staff and allowing

nonmedical personnel to make decisions that affect medical care. (Id. at p. 42, 45). As a result,

inmates at Menard do not receive adequate medical, mental health, and dental care. (Id. at p. 6).

Defendants Pritzker, the Governor of Illinois, Jeffreys, Director of IDOC, and Willis, Warden of

Menard, have been made aware of these issues because of inmate grievances and lawsuits

pertaining to the same. (Id. at p. 6-7). Despite being put on notice that inmates were being provided

inadequate care by Wexford, Defendants have failed to fix the problems and to prevent Wexford

from understaffing the health care unit. (Id. at p. 9-10). This has created an atmosphere at Menard

of lawlessness, where there are no consequences for correctional officers, medical staff, and prison

administration personnel who deny or provide inadequate healthcare to inmates. (Id. at pp. 10, 12,

15, 27).

Additionally, Defendants Pritzker, Jeffreys, and Willis have also created an ineffective

grievance process. When an inmate grieves mistreatment or inadequate medical care, the

grievances are reviewed by the people running the prison who are friends, co-workers, and

relatives of the staff who are the subject of the grievance. (Id. at p. 11). Grievances then go missing.

(Id.). Defendants were put on notice of the problems with the grievance filing system by the

countless grievances and lawsuits that have been filed but nothing has been done to fix these

problems. (Id. at p. 11-12).

The problems regarding overcrowding, inadequate medical care, and grievance procedures

have continued and contributed to Defendants’ failure to protect inmate health and safety during

the COVID-19 pandemic. (Id. at p. 40, 43, 45).

Plaintiffs are three African American men who have tested positive for COVID-19 and

were quarantined in unconstitutional conditions in South Cell House at Menard. (Id. at p. 20, 39,

48). COVID-19 is more detrimental to African Americans, and Menard has an inmate population

that is over sixty-five percent African American. (Id. at p. 20, 29). Defendants, Pritzker, Jeffreys,

and Willis, along with John Doe #1, the Medical Director of IDOC, Hinton, the Director of Mental

Health, and Wexford, are the policy makers responsible for making the decisions regarding

COVID-19 protocols, including, what to do when inmates or staff contract COVID-19, where to

quarantine inmates, what type of care to provide, the type of cleaning supplies needed, and

assessing the condition of each building. (Id. at p. 21-22, 23, 26). During the COVID-19 pandemic,

Defendants have failed to enforce existing safety protocols and implement necessary measures to

prevent the spread and exposure of COVID-19 and provide adequate medical care at Menard,

resulting in Plaintiffs contracting the virus and receiving inadequate care. (Id. at p. 22, 26-27).

Menard was placed on quarantine in March 2020. (Id. at p. 12). In consultation with the

Center of Disease Control, Pritzker, Jeffreys, and Wills issued safety orders, including: (1) the use

of social distancing; (2) staying indoors unless necessary to go out for medical care; (3) seek

medical care if you develop any COVID-19 related symptoms; (4) keep hands clean; (5) keep

surfaces clean; (6) wear a protective mask at all times; and (7) keep nose covered when coughing

or sneezing. (Id. at p. 13). Officers and medical staff do not, however, follow these orders. Staff

do not wear masks and social distancing protocols are not followed. (Id. at pp. 14, 44). Staff will

have twenty to twenty-five inmates shower at a time in a room with only eight functioning shower

heads, inmates are double celled in small cells built for one inmate, and inmates, including

Plaintiffs, are repeatedly placed in holding cells with more than twelve other inmates. (Id. at pp.

14, 17, 40). Inmates placed in the holding cells are not tested or quarantined prior to being sent

back to their galleries. (Id. at p. 18). Cells that have contained an inmate with COVID-19 are not

being cleaned or wiped down before housing another inmate in the cell. (Id. at p. 39). Inmates are

not given adequate water to drink and to wash their hands or supplies to clean themselves and their

cells. (Id. at pp. 40, 44). Staff are discouraging inmates from reporting when they are unwell or

experiencing COVID-19 symptoms. (Id. at 29, 32, 35, 37). Plaintiffs wrote letters, grievances, and

contacted friends and family members to notify Defendants that staff at Menard did not follow the

proper safety procedures. (Id. at p. 13, 31). Defendants ignored the complaints and have failed to

enforce compliance with safety protocols, which placed Plaintiffs at risk of contracting COVID-

19. (Id. at p. 13-14, 17).

At the direction of Defendants, initially, inmates who tested positive for COVID-19,

reported associated symptoms, or had a fever were quarantined in North 2 Segregation Housing

Unit, in disciplinary segregation type conditions. (Id. at p. 18, 19, 23). At this time, North 2 also

housed segregation inmates who had not been previously exposed to COVID-19. (Id. at p. 18).

When the segregation inmates were released from segregation to general population, they

contaminated other inmates and spread the virus. (Id. at p. 19). Defendants then began to

quarantine any gallery where an inmate received a positive test result for COVID-19. (Id. at p. 20).

Although the gallery was quarantine, the cellhouse workers who are inmates, the correctional

officers, and the medical staff were not quarantined and would move throughout the different

galleries, spreading the virus through the entire cell house. (Id.).

Defendants then ordered for South Cell House, a cell house that had been condemned and

closed for construction, to reopen and used to house quarantined inmates. (Id. at p. 23). The cell

house does not have hot water and the cold water coming from the sinks is brown, contains black

specks, and smells of feces. (Id. at p. 24). The cell house is dirty and has mice, spiders, roaches,

and dust mites. (Id. at p. 24, 38). It also has black mold on the walls and problems with the

plumbing causing the toilets to “back up.” (Id. at p. 24). Defendants claim that bleach water and

soap were to be passed around three times a week to clean the cells, but this is not happening. (Id.

at p. 38). Defendants were informed but did not do anything to fix the filthy living conditions. (Id.

at p. 23, 38). Inmates quarantined in South Cell House were subjected to inhuman living conditions

and denied basic necessities such as access to exercise, medical care, mental health care, dental

care, legal visits, the law library, personal property, commissary, and showers. (Id. at pp. 22, 25,

26).

Because inmates know they will be housed in South Cell House if they tested positive for

COVID-19, inmates hide their symptoms and do not report when they were sick, increasing

exposure and the spread of the virus at Menard. (Id. at p. 26, 31). Staff try to deter inmates from

reporting that they are sick by threatening them with quarantine, where they are placed in

segregation type conditions. (Id. at p. 38).

At the direction of Willis and Jeffreys, nonmedical staff, Wexford and medical staff have

canceled all medical, mental health, and dental passes. (Id. at pp. 20, 46). Wexford has not offered

medical care to inmates during this pandemic, resulting in inmates being denied care, even if they

have COVID-19 symptoms. (Id. at p. 46). Nurses were not doing temperature checks, seeing

inmates at sick call or outpatient appointments, or making rounds in the cell houses to check on

inmates. (Id. at p. 46).

Plaintiff Rico Clark

Plaintiff Clark was housed in segregation in North 2 when Defendants began using the cell

house to quarantine inmates, exposing him to COVID-19. (Id. at pp. 19, 35). Almost immediately

upon being released from segregation and relocated to East Cell House, Clark began to feel sick.

(Id. at p. 36). He experienced headaches, body aches, cramps in his back, fever, chills, sweats, and

loss of smell and taste. (Id.). In violation of the social distancing policy, he was placed in a shower

with around sixteen other inmates. (Id. at p. 37). He verbally reported to staff that he did not feel

well and was threatened that he would be quarantined, where he could not shower, and his property

would be inventoried, taken to property, and searched. (Id.). When he asked why he could not take

his property with him to quarantine, he was told, “thats how shit is going when you guys complain

or test positive for the COVID. Makes you wish you would have kept your mouth shut hunh?”

(Id.).

Clark was taken to South Cell House where he was without his legal correspondence box

and documents. He could not send out any legal or regular mail, and he had a pending motion in

the criminal courts. (Id. at p. 38).

After quarantine, Clark was placed back into his cell in East Cell House, where he had

previously tested positive for COVID-19. (Id. at p. 39). The cell had not been thoroughly cleaned

or disinfected.

Plaintiff Shelby Turner

Plaintiff Turner complained to medical staff and correctional officers that he was having

body pains, headaches, a fever, night sweats, and chills. (Id. at p. 29). Staff ignored his complaints

and tried to discourage him from reporting his symptoms because they were understaffed and

COVID-19 was forcing staff to work harder than they wanted to work. (Id.). Turner complained

about his health conditions for three weeks, during which time he suffered in pain. (Id.). He was

eventually seen by a nurse and texted positive for COVID-19. (Id. at p. 30). He was taken to South

Cell House and placed in quarantine in unconstitutional conditions. (Id.). Turner was forced to

leave his personal property in his cell and was not allowed to take his property with him to South

Cell House. He was told by a correctional officer and nurse “I bet you wish you never complained

because now you going to the fucked up cell house for quarantine without your property.” (Id. at

p. 31).

After quarantine, Turner returned back to his cell in East Cell House, where he had

previously tested positive for COVID-19. (Id. at p. 39-40). The cell had not been thoroughly

cleaned or disinfected.

Plaintiff Nathanial Fleming

Plaintiff Fleming submitted a sick call requests and verbally complained to correctional

officers and medical staff that he was not feeling well and that he thought he had COVID-19. (Id.

at p. 32). He was ignored and told by nurses that “quarantine is messed up.” (Id.). He experienced

severe and extreme body aches, spasms in his back, arms, and legs, cramps in his side and legs,

headaches, sweats, chills, and hot flashes. The nurses made him feel like if he kept complaining

then he would be sent to segregation or punished because he had been exposed to COVID-19.

(Id.). Fleming sent a message to a friend stating he did not feel well and whoever was monitoring

the messages sent medical staff to his cell to test him for COVID-19. (Id. at p. 32-33). Fleming

was told by a correctional officer and nurse that he made them look bad by “going over their heads”

with his complaint. (Id. at p. 33). The nurse told Fleming, “I guarantee you’re not going to like

quarantine.” (Id. at p. 34). He was then moved to South Cell House without his property. (Id. at p.

34). In South Cell House, Fleming was told by a correctional officer that he should not have written

grievances. (Id. at p. 35). Fleming had never received a response for his grievance and so, the

comment revealed that the grievance was received by Menard staff but thrown away or ignored,

making the exhaustion process unavailable. (Id. at p. 35) .

After quarantine, Fleming was placed back into the cell in East Cell House, where he had

previously tested positive for COVID-19. (Id. at p. 39-40). The cell had not been thoroughly

cleaned or disinfected.

DISCUSSION

Based on the allegations of the Complaint, the Court finds it convenient to designate the

following Counts:

Count 1: Eighth Amendment claim against Pritzker, Jeffreys, and Willis for

overcrowded conditions at Menard, which subjected Plaintiffs to

unconstitutional conditions of confinement, including the failure to

follow COVID-19 safety protocols and delay of medical treatment.

Count 2: Eighth Amendment claim of against Pritzker, Jeffreys, Willis, John

Doe #1, and Hinton for failing to enforce and implement necessary

safety protocols to protect Plaintiffs from the spread of and exposure

to COVID-19.

Count 3: Eighth Amendment claim of denial of adequate medical care against

Pritzker, Jeffreys, Willis, John Doe #1, and Hinton for providing

Plaintiffs delayed and inadequate treatment after they contracted

COVID-19.

Count 4: Eighth Amendment claim of cruel and unusual punishment against

Pritzker, Jeffreys, Willis, John Doe #1, and Hinton for quarantining

Plaintiffs in unconstitutional conditions of confinement.

Count 5: Eighth Amendment claim against Wexford for denial of adequate

medical care to Plaintiffs.

Count 6: State law claim of intentional infliction of emotional distress against

Pritzker, Jeffreys, Willis, John Doe #1, Hinton, and Wexford.

Count 7: Fourteenth Amendment due process claim against Pritzker, Jeffreys,

Willis, John Doe #1, and Hinton for implementing an ineffective

grievance system.

Count 8: First Amendment claim against Pritzker, Jeffreys, Willis, John Doe

#1, and Hinton for denying Plaintiffs access to the law library and

mail.

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

otherwise directed by a judicial officer of this Court. Any other claim that is mentioned in the

Complaint but not addressed in this Order should be considered dismissed without prejudice

as inadequately pled under the Twombly pleading standard.1

Count 1

It has long been held that prison overcrowding is not a per se constitutional violation. See

Rhodes v. Chapman, 452 U.S. 337, 348 (1981). “Accordingly, an inmate’s constitutional challenge

to prison conditions requires a two-part examination.” Townsend v. Fuchs, 522 F.3d 765, 773.

First, a plaintiff must establish that the prison was overcrowded, and that the overcrowding led to

intolerable conditions, such as the deprivation of medical care, food, sanitation, or an increase in

violence (objective component). Id.; see also French v. Owens, 777 F.2d 1250, 1253 (7th Cir.

1985). Second, a plaintiff must demonstrate that the defendant acted with deliberate indifference

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

with respect to the conditions (subjective component). Townsend, 522 F.3d at 773 (quoting Farmer

v. Brennan, 511 U.S. 832, 834 (1994)).

Plaintiffs claim that because Menard is severely overcrowded, Plaintiffs were unable to

properly social distance to prevent exposure to COVID-19, and then once they contracted COVID-

19, necessary treatment was delayed because there was not enough staff to treat all the inmates at

Menard. (Doc. 1, p. 40). Defendants Pritzker, Jeffreys, and Willis were put on notice prior to the

pandemic that the overcrowding at Menard was causing inmates to receive inadequate medical

care, and during the pandemic, Defendants have continued to be informed of the effects of

overcrowding through grievances and complaints. Specifically, Plaintiff Turner was discouraged

by medical staff from seeking treatment for his COVID-19 symptoms because Menard is

understaffed. (Doc. 1, p. 29). These allegations adequately plead a claim for unconstitutional

conditions of confinement due to overcrowding.

Count 2

“The Eighth Amendment prohibits prison officials from knowingly disregarding

substantial risks of serious harm.” Riley v. Ewing, 777 F. App’x 159, 162 (7th Cir. 2019). And

while liability under Section 1983 requires personal involvement in the alleged constitutional

violation, an individual setting prison policy may be liable “if they are aware of a systematic lapse

in enforcement of a policy critical to ensuring inmate safety yet fail to enforce that policy.” Sinn

v. Lemmon, 911 F.3d 412, 423 (7th Cir. 2018) (internal citations and quotations omitted). See also

Gossmeyer v. McDonald, 128 F.3d 481, 495 (7th Cir. 1997) (noting that “personal involvement is

a prerequisite for individual liability in a § 1983 action”). Plaintiffs claim that (1) Defendants were

informed that COVID-19 safety protocols were not being followed by staff and insufficient to

prevent the spread of the virus at Menard; and (2) despite this knowledge, Defendants failed to

take action to ensure that inmates were adequately protected from exposure to and spread of

COVID-19. (See Doc. 1, pp. 27, 28, 34). As a result, Plaintiffs contracted the virus. This is

sufficient for Count 2 to proceed against Pritzker, Jeffreys, Willis, John Doe #1, and Hinton.

Count 3

Plaintiffs allege that Defendants suspended all inmate access to medical, mental health,

and dental care during the pandemic. As a result, Plaintiffs were not promptly treated when they

began experiencing COVID-19 associated symptoms, and their requests for medical care were

ignored. (Doc. 1, p. 46). Defendants were aware that staff were delaying and denying medical

treatment and threatening inmates who displayed COVID-19 symptoms with being quarantined in

harsh conditions but did not act to fix the problem. (Id. at pp. 31, 32). These allegations are

sufficient to establish that Defendants disregarded an excessive risk to their health, specifically

regarding the treatment of COVID-19 and associated symptoms, and Count 3 shall proceed against

Pritzker, Jeffreys, Willis, John Doe #1, and Hinton.

The general claim that Defendants violated Plaintiffs’ constitutional rights by suspending

access to healthcare services, however, is dismissed. (Doc. 1, p. 23, 46, 47). To state claim for

denial of adequate medical care Plaintiffs must allege that Defendants “acted with reckless or

malicious intent to deny [them] medical care for an objectively serious condition.” Elock v.

Davidson, 561 F. App’x 519, 523 (7th Cir. 2014). Other than stating that they were diagnosed with

COVID-19, Plaintiffs have not asserted that they suffered from any other type of medical, dental,

or mental health condition that required treatment. Because they did not require medical treatment

for any other health condition, the policy decision to suspend healthcare services did not violate

their right to adequate healthcare.

Count 4

Plaintiffs claim that they were quarantined for two weeks in a condemned building with

mice, spiders, and roaches and in unsanitary conditions. During this time, they were denied access

to potable water, showers, exercise, the commissary, the law library, mail, and their personal

property. Pritzker, Jeffreys, Willis, John Doe #1, and Hinton knew about the conditions of South

Cell House and continued to house ill inmates there. At this stage, these allegations state a viable

claim for unconstitutional conditions of confinement, and Count 4 will proceed. See e.g., Gray v.

Hardy, 826 F.3d 1000, 1006 (7th Cir. 2016) (lack of access to adequate cleaning supplies, along

with infestation of insects stated an Eighth Amendment claim); Jaros v. Ill. Dep’t of Corr., 684 F.

3d 667, 670 (7 Cir. 2012) (stating that adequate “facilities to wash and use the toilet are among the

minimal civilized measure of life’s necessities”) (internal citations and quotations omitted); Smith

v. Dart, 803 F. 3d 304, 314 (7 Cir. 2015) (holding that a jail must provide drinkable water); Budd

v. Motley, 711 F.3d 840, 842-43 (7th Cir. 2013) (considering the combined effect of prison

conditions).

Count 5

To maintain an Eighth Amendment claim against Wexford for deliberate indifference, a

plaintiff must assert that a policy or practice caused the violation. Woodward v. Corr. Med. Serv.

of Ill., Inc., 368 F.3d 917, 927 (7th Cir. 2004)

Plaintiffs claim that Wexford has a policy of saving costs by understaffing the healthcare

unit, not adequately training medical staff to provide medical care in a prison setting, and allowing

nonmedical personnel to make decision affecting inmate medical care. These cost saving measures

resulted in Plaintiffs being denied medical care because there are not enough staff to treat the

inmates with COVID-19 symptoms or who had tested positive results, medical staff are not

following proper safety protocols further exposing inmates to the virus, and medical staff are

taking direction from nonmedical personnel regarding medical care. (Doc. 1, p. 43-44, 45, 46).

This is sufficient for Count 5 to proceed against Wexford for denying adequate treatment to

Plaintiffs for COVID-19.

To the extent that Plaintiffs are arguing that Wexford’s policy has denied them adequate

medical, mental health, and dental care in general, these claims are dismissed. As previously

discussed, other than claiming they suffered from COVID-19, Plaintiffs have not alleged that they

had a serious medical need that required medical attention ― the first element of a deliberate

indifference claim.

Count 62

Plaintiffs allege that Defendants turned a blind eye and did not provide medical or mental

health attention to them after they complained that they were not receiving adequate medical care

for the COVID-19 virus. (Doc. 1, p. 49). Based on media reports, Plaintiffs believed that they

would die after contracting the virus. Because of Defendants’ intentional actions, Plaintiffs became

depressed and experienced emotional distress. (Id.). This is sufficient for Count 6 to survive

screening. See Somberger v. City of Knoxville, Ill., 434 F.3d 1006, 1030 (7th Cir. 2006) (discussing

the elements of intentional infliction of emotional distress under Illinois law).

Count 7

Count 7 against Defendants Pritzker, Jeffreys, Willis, John Doe #1, and Hinton for

implementing an inadequate grievance process will be dismissed. Inmates do not have a

constitutional right to an effective grievance procedure. Antonelli v. Sheahan, 81 F.3d 1422, 1430

(7th Cir. 1996). In fact, the Constitution requires no procedure at all, and the failure of state prison

officials to follow their own procedures does not, of itself, violate the Constitution. Maust v.

Headley, 959 F.2d 644, 648 (7th Cir. 1992); Shango v. Jurich, 681 F.2d 1091, 1098 (7th Cir. 1982).

Defendants thus incur no liability under Section 1983 for the mishandling of grievances.

2 The state law claim in Count 6 concerns the same facts of the Section 1983 claims, so supplemental jurisdiction is

appropriate. See 28 U.S.C. 1367(a); Wisconsin v. Ho-Chunk Nation, 512 F.3d 921, 936 (7th Cir. 2008).

Count 8

Plaintiffs claim that under the COVID-19 safety protocols inmates have been unable to

have legal visits, access the law library, and send out mail (Doc. 1, p. 22, 25). Specifically,

Plaintiffs Turner and Clark could not take their legal work with them to South Cell House when

they were quarantined, and Plaintiff Clark had a motion pending in his criminal case. (Doc. 1, pp.

30, 38). These claims are not sufficient to state a claim for violation of the First Amendment.

To the extent that Plaintiffs are claiming that the two week prohibition on mail during their

period in quarantine violated their right to free speech, the Complaint fails to describe actual

instances where they attempted to send and receive mail but were unable to do so because of the

policy. Zimmerman v. Tribble, 226 F. 3d 568, 572-73 (7th Cir. 2000) (finding that the plaintiff

failed to state a claim for a First Amendment violation where he complained of only one instance

of mail delay). Similarly, Plaintiffs have failed to state a viable claim for denial of access to the

courts in violation of the First Amendment. To state a claim for denial of access to courts, a plaintiff

must claim that denial of access to the law library, legal documents, or legal assistance “hindered

his efforts to pursue a legal claim.” Lewis v. Casey, 518 U.S. 343, 351 (1996). In other words, “the

mere denial of access to a prison law library or to other legal materials is not itself a violation of a

prisoner’s rights; his right is to access the courts,” and only if the defendants’ conduct prejudices

a potentially meritorious legal claim has the right been infringed. Marshall v. Knight, 445 F.3d

965, 968 (7th Cir. 2006). Mere delay or inconvenience is not an unconstitutional detriment. Here,

Plaintiffs do not explain “the connection between the alleged denial of access to legal materials

[and the law library] and an inability to pursue a legitimate challenge.” Ortiz v. Downey, 561 F.3d

664, 671 (citations omitted). Accordingly, Count 8 will be dismissed.

MOTION FOR APPOINTMENT OF COUNSEL

Plaintiffs have filed a Motion for Appointment of Counsel, which is denied. (Doc. 3). As

litigants in a civil case, Plaintiffs do not have a right to counsel. Pruitt v. Mote, 503 F.3d 647, 649

(7th Cir. 2007). However, the Court “may request an attorney to represent any person unable to

afford counsel.” 28 U.S.C. § 1915 (e)(1). Plaintiffs, however, have not submitted any

documentation to demonstrate to the Court that they are indigent. They have not paid the filing fee

and have not filed a motion to proceed in forma pauperis in this case. Thus, Court has no basis for

concluding that they are unable to afford counsel, as is required by Section 1915(e), and the Motion

is denied.

MOTION FOR CLASS CERTIFICATION

Because Plaintiffs are currently proceeding pro se, they cannot represent a class of

plaintiffs, and the Motion for Class Certification (Doc. 4) is denied without prejudice. See Howard

v. Pollard, 814 F.3d 476, 478 (7th Cir. 2015) (“it is generally not an abuse of discretion for a

district court to deny a motion for class certification on the ground that a pro se litigant is not an

adequate class representative.”) (emphasis omitted); Lawrence v. Sec’y of State, 467 F. App'x 523,

525 (7th Cir. 2012) (noting that “pro se plaintiffs cannot represent others”)

PRELIMINARY INJUNCTION

As mentioned, Plaintiffs have filed a Motion for Preliminary Injunction claiming that they

are still endangered of being exposed to the COVID-19 virus. (Doc. 2). They ask the Court to order

Defendants and staff to follow the COVID-19 safety protocols and to monitor their compliance.

They also request the Court to order Defendants to reduce the inmate prison population and to stop

quarantining inmates with COVID-19 in unconstitutional conditions.

The request for a preliminary injunction will remain pending until Defendants have been

served. Defendants are ordered to respond to the request for a preliminary injunction within 14

days of service of the pleadings in this case, at which point the Court will determine the need for

a hearing on the motions requesting a preliminary injunction.

GROUP LITIGATION BY MULTIPLE PRISONERS

Plaintiffs may bring their claims jointly in a single lawsuit if they so desire. But the Court

must advise them of the consequences of proceeding in this manner, including their filing fee

obligations, and give them an opportunity to withdraw from the case or sever their claims into

individual actions.

In addition to the requirement that each Plaintiff must pay a full civil filing fee, as

previously discussed, there are at least two other reasons a prisoner may wish to avoid group

litigation. First, group litigation creates countervailing costs. Each submission to the Court must

be served on every other plaintiff and the opposing parties pursuant to Federal Rule of Civil

Procedure 5. This means that if there are two plaintiffs, the plaintiffs’ postage and copying costs

for filing motions, briefs, or other papers will be twice as much as that of a single plaintiff.

Second, a prisoner litigating on his own behalf takes the risk that “one or more of his claims

may be deemed sanctionable under Federal Rule of Civil Procedure 11.” Boriboune, 391 F.3d at

854-55. On the other hand, a prisoner litigating jointly assumes those risks for all of the claims in

the group complaint, whether or not they concern him personally. Also, if the Court finds that the

complaint contains unrelated claims against unrelated defendants, those unrelated claims may be

severed into one or more new cases, each of which involves an additional filing fee obligation and

the risk of a “strike” within the meaning of 28 U.S.C. § 1915(g). Plaintiffs may wish to consider

these factors in determining whether to assume the risks of group litigation.

Because not every prisoner is likely to be aware of the potential negative consequences of

joining group litigation in federal courts, the Seventh Circuit suggested in Boriboune that district

courts alert prisoners to the individual payment requirement, as well as the other risks prisoner pro

se litigants face in joint pro se litigation, and “give them an opportunity to drop out.” Id. at 856. In

keeping with this suggestion, the Court will allow Plaintiffs an opportunity to withdraw from this

litigation.

In addition, if Plaintiffs desire to continue this litigation as a group, any proposed amended

complaint, motion, or other document filed on behalf of multiple plaintiffs must be signed by each

plaintiff. A non-attorney cannot file or sign papers for another litigant, and as long as Plaintiffs

appear without counsel in this action, each Plaintiff must sign documents for himself. See Lewis v.

Lenc-Smith Mfg. Co., 784 F.2d 829, 831 (7th Cir. 1986); FED. R. CIV. P. 11. Plaintiffs are

WARNED that future group motions or pleadings that do not comply with this requirement shall

be stricken pursuant to Rule 11(a).

DISPOSITION

By November 30, 2020, each named Plaintiff is ORDERED to advise the Court in writing

whether he wishes to continue as a Plaintiff in this group action. Each Plaintiff must also pay the

$400 filing fee or file a motion for leave to proceed IFP, in accordance with the Court’s previous

Order, by November 30, 2020. (See Doc. 6). Any Plaintiff who advises the Court that he wishes

to proceed as a litigant in this case but fails to timely submit a properly completed IFP Motion or

filing fee will be obligated to pay the complete filing fee and will also be dismissed from this

action for want of prosecution and failure to comply with a court order. FED. R. CIV. P. 41(b);

Sperow v. Melvin, 153 F.3d 780, 781 (7th Cir. 1998). If, by November 30, 2020, a Plaintiff advises

the Court that he does not wish to participate in this action, that Plaintiff will be dismissed from

the lawsuit and will not be charged a filing fee for this action. This is the only way to avoid the

obligation to pay the filing fee.

For the reasons stated above, the Complaint survives screening pursuant to Section 1915A.

COUNT 1 will proceed against Pritzker, Jeffreys, and Willis. COUNT 2 will proceed against

Pritzker, Jeffreys, Willis, John Doe #1, and Hinton. COUNT 3 will proceed against Pritzker,

Jeffreys, Willis, John Doe #1, and Hinton. COUNT 4 will proceed against Pritzker, Jeffreys,

Willis, John Doe #1, and Hinton. COUNT 5 will proceed against Wexford. COUNT 6 will

proceed against Pritzker, Jeffreys, Willis, John Doe #1, Hinton, and Wexford. COUNTS 7 and 8

are DISMISSED without prejudice.

The Motion for Appointment of Counsel (Doc. 3) and the Motion for Class Certification

(Doc. 4) are DENIED without prejudice. The Court DEFERS ruling on the Motion for

Preliminary Injunctions. (Doc. 2). Defendants are ORDERED to respond to the request for a

preliminary injunction within 14 days of service of the pleadings in this case.

The Clerk of Court shall prepare for Pritzker, Jeffreys, Willis, Wexford, and Hinton:

(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

Complaint, the Motion for Preliminary Injunction (Doc. 2), and this Memorandum and Order to

each defendant’s place of employment as identified by Plaintiffs. If a 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 that defendant,

and the Court will require that defendant pay the full costs of formal service, to the extent

authorized by the Federal Rules of Civil Procedure. The unknown John Doe will not be served

until Plaintiffs have properly identified him. After the Defendants have answered, the Court will

enter a scheduling order setting forth the specific deadlines for identifying the John Doe.

If a defendant who no longer can be found at the work address provided by Plaintiffs, the

employer shall furnish the Clerk with that defendant’s current work address, or, if not known, his

or her last known address. This information shall be used only for sending the forms as directed

above or for formally effecting service. Any documentation of the address shall be retained only

by the Clerk. Address information shall not be maintained in the court file or disclosed by the

Clerk.

Defendants are ORDERED to timely file an appropriate responsive pleading to the

Complaint and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g). Pursuant to

Administrative Order No. 244, Defendants need only respond to the issues stated in this

Merit Review Order.

If judgment is rendered against Plaintiffs, and the judgment includes the payment of costs

under Section 1915, they will be required to pay the full amount of the costs, whether or not an in

forma pauperis application is granted. 28 U.S.C. § 1915(f)(2)(A).

Finally, each 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: November 2, 2020

s/Stephen P. McGlynn

STEPHEN P. MCGLYNN

United States District Judge

NOTICE TO PLAINTIFFS

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 the complaint. It will likely take at least 60 days

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

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

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

Plaintiffs are 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.

Plaintiffs need not submit any evidence to the Court at his time, unless otherwise directed by the

Court.