Thomas v. Burns

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

KEVONTA THOMAS, )

)

Plaintiff, )

)

vs. ) Case No. 21-cv-00187-JPG

)

ROBERT BURNS, )

JOHN DOE 1, )

LEE KERSTEN, )

BOBBY SMITH, )

THOMAS KUPFERER, )

C. FALKENBERRY, )

J. PARTRIDGE, )

JESSICA BIEN, )

CAROLINE GROMMER, )

and LOGAN SIEFERT, )

)

Defendants. )

MEMORANDUM AND ORDER

GILBERT, District Judge:

Plaintiff Kevonta Thomas, a detainee at Jackson County Jail (“Jail”) located in

Murphysboro, Illinois, brings this civil rights action pursuant to 42 U.S.C. § 1983. In the

Complaint, Plaintiff claims he has been subjected to unconstitutional conditions of confinement

and denied proper mental health treatment at the Jail since 2018. (Doc. 1). Plaintiff names ten

defendants for violations of his rights under the Fourteenth Amendment. (Id. at 1-7). He seeks

declaratory judgment, money damages, and injunctive relief.1 (Id. at 8).

1 Plaintiff specifically requests an injunction compelling the defendants to provide Jackson County Jail

detainees with access to on-site mental health professionals, safe suicide cells, additional suicide cells, and

staff training to stop the use of metal handcuffs, shackles, and chains to restrain inmates in chairs. (Id.).

Absent a request for interim relief such as a temporary restraining order or preliminary injunction pursuant

to Federal Rule of Civil Procedure 65 (“Rule 65”), the Court interprets Plaintiff’s request as one for

injunctive relief at the close of the case. If he seeks more immediate relief, however, Plaintiff may file a

separate motion pursuant to Rule 65 at any time during the pending action.

The Complaint is subject to preliminary review pursuant to 28 U.S.C. § 1915A, which

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

§ 1915A(a). Any portion of a complaint that is legally frivolous, malicious, meritless, 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). 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).

The Complaint

The Complaint sets forth the following allegations (Doc. 1, pp. 1-7): Plaintiff suffers from

serious mental illness, including bipolar disorder, borderline personality disorder, post-traumatic

stress disorder (PTSD), and attention deficit and hyperactivity disorder (ADHD). (Id. at 3). He has

a significant history of self-harm that includes multiple suicide attempts at the Jail dating back to

2018. He has repeatedly tried to end his life by cutting his veins and swallowing sharp objects,

resulting in injuries that require surgical intervention. According to Plaintiff, the defendants

subjected him to unconstitutional conditions of confinement and the denial of mental health

treatment that have created a substantial risk of serious harm to his health and safety.

A. Systemic Conditions

Jackson County Jail offers no option for hospitalization, hospital-level care, suicide

prevention services, or crisis care for inmates with severe mental illness. (Id. at 4). The Jail has

no mental health care providers on staff, no mental health training, and inadequate staffing. (Id.

at 5). As a result, inmates with serious mental health needs are not identified during booking by

the appropriate personnel using proper risk assessment tools. They are not classified according to

their mental health needs and treated accordingly.

Deputies decide who requires referral or treatment for mental health issues. They send

inmates to a nurse, not a mental health provider, for further care. The deputies lack the

qualifications, training, and/or supervision necessary to make these decisions.

Many detainees with serious mental illness decompensate while in custody and require

crisis intervention. But, the Jail lacks a sufficient number of crisis or suicide watch cells. The

suicide watch cells are poorly equipped,2 and the segregation cells used for this purpose are unsafe.

Staff provide inadequate monitoring of inmates while they are in these cells and then release them

back into the general population without appropriate follow-up care.

Sheriff Burns, Lieutenant Kersten, and Sergeant Smith were the officers in charge during

the relevant time period. They were aware of these systemic conditions. However, they took no

steps to protect Plaintiff and other inmates from the serious risk of harm posed by them.

B. Denial of Mental Health Treatment

Defendants Burns, Doe, Kersten, Smith, Kupferer, and Falkenberry failed to address

Plaintiff’s mental health issues. They did not complete psychological evaluations of Plaintiff

before or after his suicide attempts. They failed to coordinate their treatment of him or develop a

consistent plan to curb his self-harm. When he was suicidal, they placed him in unsafe suicide

cells or segregation cells where he could access objects to inflict self-harm. Then, they failed to

properly monitor him, treat him, or provide follow-up care. These conditions created a substantial

risk of serious self-harm and other injurious behaviors, led to further injury, and necessitated

surgery.

2 These cells allegedly contain “tie off ligatures” and other sharp objects that can be used to attempt suicide.

(Id. at 5).

C. Use of Restraints

On several occasions,3 Defendants Smith, Partridge, Bien, Grommar, Siefert, and other

unknown officers punished Plaintiff for his suicidal behavior by restraining him in a chair using

thick zip ties on both hands and metal handcuffs, shackles, or chains on his wrists and/or ankles.

They left him in the chair for days, even weeks, at a time. Deputies denied Plaintiff’s requests for

mental health and medical treatment. Instead of conducting a psychological evaluation of him,

these defendants used the restraint chair to punish him for inflicting self-harm by forcing him to

eat and sleep in the chair, denying him access to the restroom, and requiring him to sit in his own

waste. While restrained, he lost feeling in his hands and feet, suffered cuts and bruises on his

wrists and ankles, developed back pain, and experienced difficulty breathing.

Discussion

Based on the allegations, the Court finds it convenient to designate the following

enumerated counts in the pro se Complaint:

Count 1: Fourteenth Amendment claim against Kersten and Smith, in their

individual capacities, for subjecting Plaintiff to systemic conditions

of confinement (as described in Section A) that significantly

increased his risk of serious self-harm at the Jail beginning in 2018.

Count 2: Fourteenth Amendment claim against Burns, Doe, Kersten, Smith,

Kupferer, and Falkenberry, in their individual capacities, for

denying Plaintiff mental health care at the Jail beginning in 2018 (as

described in Section B).

Count 3: Fourteenth Amendment claim against Smith, Partridge, Bien,

Grommar, and Siefert, in their individual capacities, for responding

to Plaintiff’s mental health needs by restraining him in a chair for

prolonged periods of time using zip ties, handcuffs, shackles, and

chains at the Jail beginning in 2018 (as described in Section C).

3 Plaintiff specifically identified the following dates as some, but not all, instances when he was placed in

the restraint chair as punishment for his mental health issues: December 5-12, 2019; January 13-15, 2020;

November 27-December 10, 2020. (Id. at 7).

Count 4: Monell claim against Burns, Kersten, and Smith, in their official

capacities, for the policies, customs, or widespread practices of

denying mentally ill detainees safe conditions of confinement,

including mental health treatment (as described in Section A), in

violation of the Fourteenth Amendment, by:

(a) failing to staff the Jail with mental health professionals;

(b) failing to properly train other staff to address mental

health issues of inmates using proper screening,

identification, prevention, monitoring, treatment, and

follow-up care; and

(c) housing suicidal inmates in unsafe cells and unsafe

conditions.

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

dismissed without prejudice as inadequately pled under Twombly.4

Plaintiff indicates that he was a pretrial detainee during the relevant time period. Therefore,

his claims arise under the Fourteenth Amendment Due Process Clause, which prohibits all forms

of punishment of pretrial detainees. See Kingsley v. Henderson, 576 U.S. 389 (2015); Miranda v.

County of Lake, 900 F.3d 335, 350 (7th Cir. 2018). To state a claim under the Fourteenth

Amendment, a pretrial detainee must set forth facts suggesting that each defendant “acted

purposefully, knowingly, or perhaps even recklessly” in response to conditions posing an

excessive risk to his health or safety and that the defendant’s actions were “objectively

unreasonable.” Miranda, 900 F.3d at 352-54. Plaintiff’s allegations suggest that the defendants

knowingly or purposefully responded to an obvious risk of suicide by subjecting Plaintiff to unsafe

conditions of confinement (Count 1), inadequate mental health treatment (Count 2) and

4 See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (action fails to state a claim upon which

relief can be granted if it does not plead “enough facts to state a claim to relief that is plausible on its face”).

punishment (Count 3) that was objectively unreasonable. Accordingly, Counts 1, 2, and 3 shall

proceed against those individual defendants identified in connection with each claim above.

Plaintiff also alleges that Sheriff Burns, Lieutenant Kersten, and Sergeant Smith, in their

official capacities, were responsible for policies, customs, or widespread practices that resulted in

violations of his due process rights, in the following respects; (a) by failing to provide adequate

mental health staff at the Jail; (b) by failing to properly train staff to address mental health issues

of inmates; and (c) by housing suicidal inmates in unsafe cells and unsafe conditions. When a

plaintiff sues an individual officer in his official capacity, the official capacity claim generally

represents “another way of pleading an action against an entity of which the officer is an agent.”

Kentucky v. Graham, 473 U.S. 159, 165 (1985) (citing Monell, 436 U.S. at 690 n. 55). The official

capacity suit is not against the individual himself, but rather the entity. Id. at 166.

Construed liberally, Count 4 against the Jackson County sheriff (Burns), lieutenant

(Kersten), and sergeant (Smith), in their official capacities, represents a Monell claim against

Jackson County itself. A local government body, such as a county, can be held liable under Section

1983, if (a) it had an express policy calling for a constitutional violation; (b) it had a widespread

practice of constitutional violations that was so permanent and well settled as to constitute custom

or usage with the force of law; or (c) a person with final policymaking authority for the body

caused the constitutional violation. Monell v. Department of Soc. Servs., 436 U.S. 658, 694 (1978);

McCormick v. City of Chi., 230 F.3d 319, 324 (7th Cir. 2000). The allegations suggest that one or

more policies, customs, or widespread practices described in the Complaint may have violated

Plaintiff’s due process rights. At this stage, Count 4 shall receive further review against the three

defendants in their official capacities.

Identification of Unknown Defendant

Plaintiff shall be allowed to proceed with Count 2 against John Doe 1. However, this

defendants must be identified with particularity before service of the Complaint can be made on

him. Plaintiff will have the opportunity to engage in limited discovery to ascertain the identity of

the defendant. Rodriguez, 577 F.3d at 832. Sheriff Burns is already named as a defendant, in his

official capacity, and he shall be responsible for responding to discovery aimed at identifying the

unknown defendant. Once identified, Plaintiff must file a motion to substitute the newly-identified

defendant in place of the generic designation in the caption and throughout the Complaint.

Pending Motion

Plaintiff’s Motion for Recruitment of Counsel (Doc. 7) shall be GRANTED. When

presented with a request for counsel by an indigent plaintiff, the district court must consider, first,

whether the plaintiff has made reasonable attempts to secure counsel and, if so, “whether the

difficulty of the case—factually and legally—exceeds the particular plaintiff’s capacity as a

layperson to coherently present it.” Navejar v. Iyiola, 718 F.3d 692, 696 (7th Cir. 2013) (quoting

Pruitt v. Mote, 503 F.3d 647, 655 (7th Cir. 2007)). Plaintiff has satisfied the Pruitt factors. In the

motion, Plaintiff has demonstrated that he is unable to locate counsel on his own because of

COVID-related restrictions in place at the Jail. Moreover, he requires an attorney to represent him

in this matter, given the numerous claims at issue in this case and his significant mental health

issues, suicidal tendencies, and grade school education. Accordingly, the Court will randomly

select counsel through the Case Management/Electronic Case Filing (“CM/ECF”) system to

represent Plaintiff in this case only.

Disposition

IT IS ORDERED that the Complaint (Doc. 1) survives screening under 28 U.S.C.

§ 1915A, as follows:

• COUNT 1 against KERSTEN and SMITH, in their individual capacities;

• COUNT 2 against BURNS, KERSTEN, SMITH, KUPFERER, FALKENBERRY,

and DOE (once identified), in their individual capacities;

• COUNT 3 against SMITH, PARTRIDGE, BIEN, GROMMAR, and SIEFERT, in

their individual capacities; and

• COUNT 4 against BURNS, KERSTEN, and SMITH, in their official capacities.

Because this suit addresses one or more medical claims, the Clerk of Court is

DIRECTED to enter the standard qualified protective order pursuant to the Health

Insurance Portability and Accountability Act.

IT IS ORDERED that all other claims not mentioned above are DISMISSED without

prejudice from this action.

IT IS ORDERED that ROBERT BURNS, in his official capacity, is responsible for

responding to discovery aimed at identifying the unknown officer (John Doe 1) with particularity.

The Clerk of Court shall prepare for Defendants BURNS, KERSTEN, SMITH, in their

individual and official capacities, and KUPFERER, FALKENBERRY, PARTRIDGE, BIEN,

GROMMAR, SIEFERT, and, JOHN DOE 1 (once identified), in their individual capacities:

(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 (Doc. 1), 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 that

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

Civil Procedure.

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

employer shall furnish the Clerk with that defendant’s current work address, or 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

Merits Review Order.

Assignment of Counsel

IT IS ORDERED that Plaintiff’s Motion for Recruitment of Counsel (Doc. 7) is

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

attorney Brandon B. Copeland of Brown & James, PC – St. Louis, Missouri, is ASSIGNED to

represent Plaintiff in this civil rights case only. On or before May 19, 2021, assigned counsel shall

enter his appearance in this case. Attorney Copeland 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 shall 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. 1 to attorney Copeland. The electronic case file is available in CM-ECF. Now that

counsel has been assigned, Plaintiff shall not personally file anything in this case, except a

pleading that asks that he 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 case 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:

KEVONTA THOMAS

Jackson County Jail

1001 Mulberry Street

Murphysboro, IL 62966

IT IS SO ORDERED.

DATED: 5/5/2021

s/J. Phil Gilbert

J. PHIL GILBERT

United States District Judge