Eglseder v. Watson

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

JOHN EGLSEDER, #468248, )

)

Plaintiff, )

)

vs. ) Case No. 21-cv-00159-JPG

)

RICHARD WATSON, )

TRINITY SERVICE GROUP, )

and DAVID MARCOWITZ, )

)

Defendants. )

MEMORANDUM & ORDER

GILBERT, District Judge:

Plaintiff John Eglseder, an inmate at St. Clair County Jail (“Jail”), filed this action pursuant

to 42 U.S.C. § 1983.1 (Docs. 2, pp. 1-98). In the Complaint, he challenges the unconstitutional

conditions of his confinement at the Jail. (Id. at 10-12). Plaintiff seeks money damages from the

defendants. (Id. at 13).

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.

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

to state a claim for relief, or requests money damages from an immune defendant must be

dismissed. 28 U.S.C. § 1915A(b). At this juncture, the factual allegations are liberally construed.

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

1 On February 11, 2021, this case was severed from a civil rights action filed by thirteen inmates at St. Clair

County Jail. See Brown v. Watson, et al., No. 21-cv-138-JPG (S.D. Ill. filed Feb. 9, 2021).

The Complaint

According to the allegations in the Complaint, Plaintiff has been subjected to

unconstitutional conditions of confinement at the Jail. (Doc. 2, pp. 11-12, 69-75). Sheriff Richard

Watson allows detainees to purchase and smoke e-cigarettes, despite a general prohibition against

smoking. (Id. at 11, 69-75). E-cigarettes are available for purchase at the Trinity Services Group

(TSG) Commissary. (Id.). Plaintiff claims that his direct and secondhand exposure to e-cigarette

smoke has caused him to develop migraines, sinus infections, breathing problems, tinnitus, dental

infections, and high blood pressure. He also blames secondhand vapor for the transmission of

coronavirus at the Jail. He alleges that poor ventilation, overcrowding, and communal living have

likewise contributed to the spread of the virus. (Id.).

Plaintiff reported his symptoms to Dr. Marcowitz and requested COVID-19 testing. The

doctor denied several of his requests for testing. Eventually, Plaintiff tested positive. Nurses did

not conduct regular temperature checks or provide medication for these symptoms. (Id.).

At the time, Plaintiff was housed in AA-Block, where he was forced to sleep on the floor

with insects, black mold, and COVID-positive inmates. Sheriff Watson, the Jail

Administration/Staff, Jail Nurses, and Dr. Marcowitz took inadequate steps to prevent, diagnose,

and contain the virus. (Id.). Jail staff were provided with masks and gloves to prevent infection,

but inmates were not. (Id. at 12, 69-75). Incoming inmates were not tested for COVID-19,

separated from one another, or allowed to use protective gear. As a result, there was an outbreak.

As of January 2021, Plaintiff alleges that a total of three hundred inmates (300) have tested positive

for the virus, and three (3) have died from COVID-19. (Id. at 12).

Preliminary Dismissals

Plaintiff refers to “Jail Administration/Staff” and “Jail Nurses” in the statement of his

claim. The Court will not treat these groups of individuals as defendants. For one thing, Plaintiff

does not name them as defendants in the case caption, so the Court will not add them to this action.

See Myles v. United States, 416 F.3d 551, 551–52 (7th Cir. 2005) (defendants must be “specif[ied]

in the caption”). Moreover, Plaintiff cannot state a claim against any particular individual under

Section 1983 by referring to nebulous groups in the case caption or statement of his claim. (Doc. 2,

pp. 11-12, 69-75). Plaintiff must refer to each defendant individually in the case caption and

throughout the Complaint. The “Jail Administration/Staff” and “Jail Nurses” are not considered

part of this action.

Discussion

Based on the allegations in the Complaint, the Court finds it convenient to divide the pro

se action into the following enumerated counts:

Count 1: Fourteenth or Eighth Amendment claim against Sheriff Watson and

TSG Commissary for instituting a policy, custom, or practice of

allowing e-cigarettes at the Jail.

Count 2: Fourteenth or Eighth Amendment claim against Sheriff Watson for

subjecting Plaintiff to unconstitutional conditions of confinement,

including exposure to e-cigarette smoke, overcrowding, insects, and

mold.

Count 3: Fourteenth or Eighth Amendment claim against Sheriff Watson and

Dr. Marcowitz for exposing Plaintiff to conditions of confinement

that posed a substantial risk of serious harm caused by the novel

coronavirus, including exposure to COVID-positive inmates, denial

of protective gear, and denial of adequate testing for the virus.

Count 4: Fourteenth or Eighth Amendment claim against Dr. Marcowitz for

denying Plaintiff adequate medical care for symptoms of COVID-

19 following Plaintiff’s development of symptoms.

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

dismissed without prejudice as inadequately pled under Twombly.2

Counts 1 through 4

The applicable legal standard for Plaintiff’s claims depends on his status as a pretrial

detainee or convicted prisoner at the time his claims arose. The Fourteenth Amendment’s

objective unreasonableness standard governs a pretrial detainee’s claims for unconstitutional

conditions of confinement and denial of medical care. See Hardeman v. Curran, 933 F.3d 816

(7th Cir. 2019) (conditions of confinement claim); Miranda v. County of Lake, 900 F.3d 335 (7th

Cir. 2018) (denial of medical care). The Eighth Amendment standard governs the same claims

brought by a convicted person and requires a showing of a sufficiently serious deprivation (an

objective standard) and deliberate indifference by each defendant (a subjective standard). See

Hardeman, 933 F.3d at 822 (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994). To state a claim

under either amendment, Plaintiff must set forth allegations demonstrating each defendant’s

personal involvement in a constitutional deprivation. West v. Atkins, 487 U.S. 42 (1988). Plaintiff

has satisfied these requirements in connection with each claim above, by setting forth allegations

which suggest that each defendant acted objectively unreasonable or deliberately indifferent to the

conditions of his confinement and/or medical condition. Accordingly, Counts 1 through 4 shall

receive further review against the defendants named in connection with each claim above.

Plaintiff’s exact legal status and the applicable legal standard for each claim can be sorted out as

the case proceeds.

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

Exhaustion of Administrative Remedies

The Prison Litigation Reform Act (“PLRA”) requires a prisoner-plaintiff to properly

exhaust all available administrative remedies before filing a lawsuit to address his claims in federal

court. See 42 U.S.C. § 1997e. The PLRA makes exhaustion a precondition to suit. Dixon v. Page,

291 F.3d 485, 489 (7th Cir. 2002). Although exhaustion is an affirmative defense and not a

pleading requirement, Jones v. Bock, 549 U.S. 199, 211-12, 215 (2007), Plaintiff must demonstrate

exhaustion of all available administrative remedies in order to survive summary judgment on the

issue of exhaustion. If Plaintiff did not exhaust his available administrative remedies at the Jail

before bringing this action, his unexhausted claims will be dismissed without prejudice, and he

may file a new suit to address the claims once he properly exhausts (if there is still time to do so

before the 2-year statute of limitations expires).

Plaintiff includes copies of complaint / request forms from other inmates (Inmates Hollins,

Hoffman, Taylor, Shelton) as exhibits to the Complaint. (See Doc. 2, pp. 28-32). Although

Plaintiff was not required to plead exhaustion or to attach copies of his grievances to the

Complaint, the Court notes that there are no complaints, requests, or grievances from him among

the exhibits. Plaintiff should simply be aware that he must exhaust all available administrative

remedies for each of his claims against the defendants before bringing suit under the PLRA.

Recruitment of Counsel

Plaintiff’s Motion for Recruitment of Counsel (Doc. 6) is DISMISSED without prejudice.

Although there is no constitutional or statutory right to counsel in federal civil cases, the district

court has discretion under 28 U.S.C. § 1915(e)(1) to recruit counsel for an indigent litigant. Ray

v. Wexford Health Sources, Inc., 706 F.3d 864, 866-67 (7th Cir. 2013); Romanelli v. Suliene, 615

F.3d 847, 851 (7th Cir. 2010). The Court must consider whether the indigent plaintiff has made

reasonable attempts to secure counsel on his own. Navejar v. Iyiola, 718 F.3d 692, 696 (7th Cir.

2013) (citing Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007)). If so, the Court must examine

“whether the difficulty of the case—factually and legally—exceeds the particular plaintiff’s

capacity as a layperson to coherently present it.” Navejar, 718 F.3d at 696 (quoting Pruitt, 503

F.3d at 655).

Plaintiff has not demonstrated reasonable efforts to locate counsel on his own or shown

that he was effectively precluded from searching for an attorney. (Doc. 6). He lists the names of

four attorneys or law firms that he wrote. (Id.). Plaintiff failed to attached copies of his

correspondence as exhibits, describe the content of his letters, or indicate when he wrote each

attorney/firm. He just states “neither one responded back.” (Id. at 4). In order to demonstrate

reasonable efforts, Plaintiff should either provide all of this information or attach copies of

letters/responses to his next motion. Moreover, at this stage, Plaintiff does not require an attorney

to represent him. The case has just been screened herein. Defendants have not been served with

this lawsuit or answered the Complaint. No scheduling order is in place. As the case progresses,

Plaintiff may renew his request by filing a new motion for recruitment of counsel. When he does,

Plaintiff must show his efforts to find an attorney on his own before asking the Court for assistance

recruiting counsel.

Disposition

IT IS ORDERED that the COMPLAINT (COUNTS 1, 2, 3, and 4) survives screening

under 28 U.S.C. § 1915A, as follows:

• COUNT 1 against RICHARD WATSON and TRINITY SERVICE GROUP;

• COUNT 2 against RICHARD WATSON;

• COUNT 3 against RICHARD WATSON and DR. MARCOWITZ;

• COUNT 4 against DR. MARCOWITZ.

Because one or more claims involve the alleged denial of medical care, the Clerk’s Office

is DIRECTED to ENTER the standard qualified protective order pursuant to the Health Insurance

Portability and Accountability Act.

With respect to COUNTS 1, 2, 3 and 4, the Clerk of Court shall prepare for Defendants

RICHARD WATSON, TRINITY SERVICE GROUP, and DR. DAVID MARCOWITZ:

(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

Order Severing Case (Doc. 1), Complaint (Doc. 2), and this Memorandum and Order to each

Defendant’s place of employment as identified by Plaintiff. 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 the Defendant to pay the full costs of formal service, to the extent authorized by

the Federal Rules of Civil Procedure.

IT IS ORDERED that, if a Defendant can no longer can be found at the work address

provided by Plaintiff, the employer shall furnish the Clerk with that Defendant’s current work

address, or, if not known, Defendant’s 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 should only respond to the issues stated in this

Merits Review Order.

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

under § 1915, Plaintiff will be required to pay the full amount of the costs, regardless of whether

his application to proceed in forma pauperis is filed and granted. 28 U.S.C. § 1915(f)(2)(A).

Plaintiff is ADVISED that at the time application was made for leave to proceed without

being required to prepay fees and costs or give security for the same, the applicant and his or her

attorney were deemed to have entered into a stipulation that the recovery, if any, secured in the

action shall be paid to the Clerk of the Court, who shall pay therefrom all unpaid costs taxed against

plaintiff and remit the balance to plaintiff. Local Rule 3.1(c)(1).

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: April 5, 2021 /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.