# Thomas v. Burns

> District Court, S.D. Illinois · May 5, 2021

URL: https://www.frixlaw.com/law-library/cases/10153594

## Case

- **Court:** District Court, S.D. Illinois
- **Decided:** May 5, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10153594. Public record. Not legal advice.