# Harris v. Franke

> District Court, S.D. Illinois · April 6, 2022

URL: https://www.frixlaw.com/law-library/cases/10154826

## Case

- **Court:** District Court, S.D. Illinois
- **Decided:** April 6, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10154826

## How later opinions describe it (automated extraction)

- finding that an offer to appoint counsel in a criminal case satisfied state’s obligation to provide legal assistance and prisoner had no right to demand law library access in the alternative

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

JAMAL A. HARRIS, )
)
Plaintiff, )
)
vs. ) Case No. 22-cv-00284-JPG
)
JOHN E. FRANKE, )
KIMBERLY DUNN, )
and DAVID EBRAHIM, )
)
Defendants. )

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff Jamal Harris filed this civil rights action pro se pursuant to 42 U.S.C. § 1983 for
constitutional deprivations that occurred during his pretrial detention at Alton City Jail (“Jail”).1
Plaintiff claims he was denied adequate medical care following surgery for an infection near his
brain. (Doc. 1, pp. 1-13). He was also exposed to cold living conditions and denied access to legal
materials necessary to prepare a defense in his federal criminal case. (Id.). He asserts
constitutional claims against Dr. David Ebrahim, in his individual and official capacities, and
Captain John Franke and Officer Kimberly Dunn, in their official capacities. (Id.). Plaintiff
includes no request for relief in the Complaint, but he filed a “Motion to be Transferred” on
March 28, 2022.2 (See Doc. 18). Therefore, the Court will take up this matter without delay.

1 Plaintiff originally filed this lawsuit in the United States District Court for the Eastern District of Missouri
on January 24, 2022. Harris v. Frank, et al., Case No. 22-cv-00088 (E.D. Mo.). The case was transferred
to this District on February 18, 2022. (See Doc. 4).
2 Plaintiff filed an unsigned Motion to be Transferred (see Doc. 11) on March 10, 2022, which he replaced
with a signed copy on March 28, 2022 (see Doc. 18). The unsigned version at Doc. 11 shall be
STRICKEN, and the Court will address the signed version at Doc. 18 herein.
This case is now before the Court for preliminary review of the Complaint pursuant to
28 U.S.C. § 1915A. Under Section 1915A, the Court is required 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, fails to state a claim upon which relief may be granted, or asks for
money damages from a defendant who by law is immune from such relief must be dismissed. See

28 U.S.C. § 1915A(b).
The Complaint
Plaintiff sets forth the below allegations in the Complaint (Doc. 1, pp. 7-9): Following his
transfer to the Jail on August 17, 2021, Plaintiff informed members of the medical staff about his
recent surgery to address an infection that developed near his brain. (Id. at 7). Plaintiff explained
that his doctor made an incision above his right eyebrow that revealed a hole in his skull, less than
one centimeter from his brain, caused by an infection. This discovery prompted his surgery and
his doctor’s recommendation that Plaintiff undergo a CT scan twice yearly to check for signs of
reinfection. Plaintiff expressed concerns about the risk of further infection and death. Even so,
Dr. Ebrahim never ordered a CT scan. (Id.).

Plaintiff submitted a sick call slip to request a CT scan in writing. (Id. at 7-8). He implored
medical staff to review his medical records to better understand the basis for his request. He
offered to sign a release for medical records. Still, Dr. Ebrahim, Captain Franke, and Officer Dunn
refused to take his medical needs seriously. (Id.).
Plaintiff filed a grievance with Captain Franke. (Id. at 8). In it, Plaintiff described the
history of his medical condition and his recent surgery. Plaintiff added that he was once again
suffering from headaches like the ones that prompted his treatment for the original infection. He
was still denied a CT scan. (Id.).
Plaintiff’s headaches worsened. He tried to speak with Captain Franke about them, but the
captain refused to speak with him. When Plaintiff again requested medical care in writing, Officer
Dunn intercepted his written request and took no action on it. He asked her to give his request to
a supervisor, but he received no response. (Id.).
As temperatures plummeted outside in the winter of 2021-22, the Jail’s improper

ventilation caused inside temperatures to drop as well. Plaintiff complained, but Officer Dunn told
him that only maintenance had access to the thermostat. Plaintiff filed grievances to address the
cold temperatures, but he received no response. (Id.).
Plaintiff also lacked access to legal materials necessary to prepare a defense in his federal
criminal case. (Id. at 9). At the time, Plaintiff was in the process of firing his criminal defense
attorney. He wanted to conduct his own legal research on the charges pending against him, but
the Jail had no federal law books in its library. Consequently, Plaintiff was unable to research the
charges or prepare his own defense. (Id.).
Finally, Plaintiff complains of unspecified threats of retaliation by unidentified individuals

for filing complaints and grievances regarding the above issues. (Id.).
Discussion
Based on the allegations in the Complaint, the Court finds it convenient to designate the
following enumerated counts in this pro se action:
Count 1: Fourteenth Amendment due process claim against Defendants for denying
Plaintiff adequate post-operative medical care for an infection near his
brain, including twice-yearly CT scans, during his pretrial detention at the
Jail beginning August 17, 2021.

Count 2: Fourteenth Amendment due process claim against Defendant Dunn for
subjecting Plaintiff to frigid indoor temperatures at the Jail in the winter.
Count 3: Sixth and/or Fourteenth Amendment claim for Plaintiff’s lack of access to
a law library with legal materials necessary to defend against pending
federal criminal charges.

Count 4: Fourteenth Amendment due process claim against Defendants for
mishandling Plaintiff’s grievances and complaints about the conditions of
his confinement.

Count 5: First Amendment retaliation claim arising from unspecified threats against
Plaintiff for filing grievances and complaints about the conditions of his
confinement.

Any other claim that is mentioned in the Complaint but not addressed herein is considered
dismissed without prejudice as inadequately pled under Twombly.3
Count 1

Plaintiff’s claim for the denial of post-operative medical care during his pretrial detention
is controlled by the Fourteenth Amendment objective unreasonableness standard articulated in
Miranda v. County f Lake, 900 F.3d 335 (7th Cir. 2018). The claim involves two inquiries. The
Court first considers whether “the medical defendants acted purposefully, knowingly, or perhaps
even recklessly when they considered the consequences of their handling of [Plaintiff’s] case.”
McCann v. Ogle Cty., Illinois, 909 F.3d 881, 886 (7th Cir. 2018) (internal quotations omitted).
The Court also asks “whether the challenged conduct was objectively reasonable” based on “the
totality of the facts and circumstances faced by the individual alleged to have provided inadequate
medical care.” Id. The allegations suggest that each defendant responded in an objectively
unreasonable manner when denying Plaintiff’s request for post-operative care at the Jail. Count 1
shall therefore receive further review.

3 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”).
This claim can only proceed against one defendant in an individual capacity, i.e.,
Dr. Ebrahim. This is because the doctor is the only defendant who is generally named in an
individual and official capacity; Captain Franke and Officer Dunn are explicitly named in their
official capacities only. Accordingly, Count 1 shall proceed against Dr. Ebrahim in his individual
capacity.

This claim need only proceed against one official capacity defendant.4 Typically, official
capacity claims for injunctive relief proceed against the high-ranking official responsible for
implementing any injunctive relief that is ordered. See Gonzalez v. Feinerman, 663 F.3d 311, 315
(7th Cir. 2011). Of the three named defendants, Captain Franke is the most appropriate official to
carry out any injunctive relief ordered herein. Count 1 shall proceed against Captain Frank, in his
official capacity. This claim shall be dismissed without prejudice against all other defendants.
The Court notes that the Complaint contains no request for relief, such as monetary or
injunctive relief, and also finds that this omission is not fatal to the Complaint at screening. See
Godfrey v. Easton, 702 F.3d 469, 471 (7th Cir. 2017) (“[F]ailure to specify the relief to which he

was entitled would not warrant dismissal.”); Bontkowski v. Smith, 305 F.3d 757, 762 (7th Cir.
2002) (citing FED. R. CIV. P. 54(c)) (prevailing party may obtain any relief to which he is entitled
“even if he has not demanded such relief in [his] pleadings”). See also FED. R. CIV. P. 8(e)(1) (no
technical form of motions or pleadings required); FED. R. CIV. P. 8(f) (all pleadings shall be
construed to do substantial justice). Therefore, Count 1 shall receive further review despite
Plaintiff’s omission of a request for relief against the defendants.

4 It is worth noting that Plaintiff makes no attempt to bring a Monell-type claim against the municipality by
naming any defendants in their official capacities for a policy, custom, or practice that caused a
constitutional violation to occur. See, e.g., Kentucky v. Graham, 473 U.S. 159, 166 (1985) (Where a
plaintiff sues an individual defendant in his official capacity for a government entity, the “entity’s policy
or custom must have played a part in the violation of federal law.”) (internal quotations omitted).
Count 2
The allegations set forth in support of Count 2 for unconstitutional conditions of
confinement are threadbare. Plaintiff complains of cold temperatures inside the Jail. However, he
offers no indication of the scope or duration of this problem. He provides no estimate of how cold
it actually was inside the Jail, where the cold temperatures were a problem (e.g., cells, dining hall,

common areas, bathrooms, etc.), how long the cold temperatures lasted (e.g., hours, days, weeks,
or months), or the availability of items used to ameliorate the problem (e.g., warm bedding,
blankets, and clothing). Plaintiff’s allegations do not articulate a plausible claim for
unconstitutional conditions of confinement that amount to punishment in violation of the
Fourteenth Amendment Due Process Clause. See Twombly, 550 U.S. at 570 (plaintiff must plead
“enough facts to state a claim to relief that is plausible on its face”). Accordingly, Count 2 shall
be dismissed without prejudice.
Count 3
When analyzing claims based on the denial of court access, the court considers two factors.

Smith v. Shawnee Library Sys., 60 F.3d 317 (7th Cir. 1995); Jenkins v. Lane, 977 F.2d 266, 268
(7th Cir. 1992). First, the plaintiff must show that prison officials failed “to assist in the preparation
and filing of meaningful legal papers by providing prisoners with adequate law libraries or
adequate assistance from persons trained in the law.” Jenkins, 977 F.2d at 268 (quoting Bounds,
430 U.S. at 828). Second, the plaintiff must show “some quantum of detriment caused by the
challenged conduct of state officials resulting in the interruption and/or delay of plaintiff’s pending
or contemplated litigation.” Alston v. DeBruyn, 13 F.3d 1036, 1041 (7th Cir. 1994); Jenkins, 977
F.2d at 268.
The allegations satisfy neither factor. As for the first factor, Plaintiff names no defendants
in connection with any denial of assistance in research or access to the law library. Plaintiff instead
complains about his criminal defense attorney, who represented him during the relevant time
period and presumably had access to these materials. Even if he “fired” his attorney and proceeded
pro se in his criminal case, Plaintiff would not be entitled to demand unfettered access to a law

library or particular library materials. See Howland v. Kilquist, 833 F.2d 639, 643 (7th Cir. 1987)
(finding that an offer to appoint counsel in a criminal case satisfied state’s obligation to provide
legal assistance and prisoner had no right to demand law library access in the alternative) (citing
United States ex rel. George v. Lane, 718 F.2d 226, 227, 233 (7th Cir. 1983) (“[N]o constitutional
right exists mandating that the prisoner in the alternative be provided access to a law library should
he choose to refuse the services of court-appointed counsel.”). As for the second factor, Plaintiff
points to no detriment he suffered from his lack of access to the law library or legal materials. He
cites no legal claims or defenses that were lost as a result. Having failed to establish either factor
necessary to proceed on this claim, Count 3 shall be dismissed without prejudice against all

defendants.
Count 4
Prison grievance procedures are not constitutionally mandated and thus do not implicate
the Due Process Clause per se. As such, the alleged mishandling of grievances “by persons who
otherwise did not cause or participate in the underlying conduct states no claim.” Owens v.
Hinsley, 635 F.3d 950, 953 (7th Cir. 2011). See also Grieveson v. Anderson, 538 F.3d 763, 772
n.3 (7th Cir. 2008); George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007); Antonelli v. Sheahan, 81
F.3d 1422, 1430 (7th Cir. 1996). Accordingly, this claim shall be dismissed with prejudice for
failure to state a claim upon which relief may be granted.
Count 5
A First Amendment retaliation claim requires the plaintiff to demonstrate that: (1) he
engaged in constitutionally protected speech; (2) he suffered a deprivation likely to deter protected
speech; and (3) his protected speech was a motivating factor in the defendant’s actions. Kidwell
v. Eisenhauer, 679 F.3d 957, 965 (7th Cir. 2012). Plaintiff baldly asserts that he suffered retaliation

for filing this suit and related grievances. However, he does not name any defendants in connection
with acts of retaliation in the Complaint, and he has not set forth sufficient allegations to nudge
this retaliation claim from the realm of “possible” to “plausible.” Twombly, 550 U.S. at 570.
Count 5 shall therefore be dismissed without prejudice against all defendants.
Motion to be Transferred
Against this backdrop, Plaintiff requests an immediate transfer to avoid retaliation from
staff for filing grievances and complaints. (Doc. 18). In the motion, Plaintiff cites “continuous”
harassment by staff at the Jail and cites the following examples:
• Plaintiff’s outgoing mail “went missing,” and he experienced a six-day delay in receiving
his incoming mail in February 2022.

• Officer Dunn targeted him for a shakedown. In the process, she tossed his bedding on the
floor. When he complained, she told him to “just wash it.”

• When he attempted to prepare his in forma pauperis application, Plaintiff had to wait all
morning for Officer McCrory to take it from him on March 1, 2022. Lieutenant Mike
O’Neill then waited another 2½ days to complete the trust fund certification.

• Plaintiff’s tablet was not recharged when he turned it in for that purpose several times.

• When Plaintiff recently asked to review important documents and video footage pertaining
to his criminal case, correctional staff ignored his requests for access to his USB and laptop
and disregarded his related complaints and grievances.

Based on these allegedly retaliatory acts, Plaintiff seeks a transfer to another facility. (Doc. 18).
The Court construes the motion as one for preliminary injunctive relief and denies the
same. See FED. R. CIV. P. 65(b). When presented with a request for interim relief, the Court must
determine whether the plaintiff has demonstrated that (1) he will suffer irreparable harm if he does
not obtain the requested relief; (2) traditional legal remedies are inadequate; and (3) he has some
likelihood of prevailing on the merits of his claim. See Mays v. Dart, 974 F.3d 810, 818 (7th Cir.

2020) (citing Speech First, Inc. v. Killeen, 968 F.3d 628, 637 (7th Cir. 2020)). If Plaintiff makes
this showing, the court must balance the harm to Plaintiff caused by denying the preliminary
injunction with the harm to Defendants caused by granting relief. Mays v. Dart, 974 F.3d at 818.
The court takes a “sliding scale” approach when balancing these harms; the more likely the
plaintiff is to win on the merits, the less the balance of harm needs to weigh in his favor. Id. (citing
Ty, Inc. v. Jones Grp., Inc., 237 F.3d 891, 895 (7th Cir. 2001)).
Count 1, the only claim that survives screening, is a Fourteenth Amendment due process
claim against Dr. Ebrahim, in his individual capacity, and Captain Franke, in his official capacity,
arising from the denial of adequate post-operative medical care at the Jail. The motion fails to

address any retaliation by the defendants who are named in Count 1 and seeks no preliminary
injunctive relief pertaining to that claim. Preliminary injunctive relief is appropriate only if it is
of the same character sought in the underlying suit. See Oswald v. Dep’t of Corr., 17-CV-1437-
PP, 2018 WL 4623583, at *2 (E.D. Wis. Sept. 26, 2018) (citing Devose v. Herrington, 42 F.3d
470, 471 (8th Cir. 1994); Neuroscience, Inc. v. Forrest, No. 12-cv-813-bbc, 2013 WL 6331346, at
*1 (W.D. Wis. Dec. 5, 2013) (denying motion for preliminary injunction because it raised issues
outside scope of complaint)). Given that his request for a transfer is unrelated to his denial of
medical care (and request for twice-yearly CT scans) involved in Count 1, the motion is DENIED.
However, the denial is without prejudice, and Plaintiff may renew his request for interim
injunctive relief by filing a Rule 65 motion for temporary restraining order and/or preliminary
injunction. He may do so at any time it becomes necessary during the pending action. In the
motion, Plaintiff should state exactly what relief he seeks and set forth each of the facts that support
his request.

Disposition
IT IS ORDERED that the Complaint (Doc. 1) survives screening under 28 U.S.C.
§ 1915A, as follows:
• COUNT 1 shall proceed against DAVID EBRAHIM, in his individual capacity, and
JOHN FRANKE, in his official capacity (for purposes of implementing injunctive
relief, if requested).

• COUNT 1 is DISMISSED without prejudice against JOHN FRANKE and
KIMBERLY DUNN, in their individual capacities, and against KIMBERLY DUNN
and DAVID EBRAHIM, in their official capacities, because the Complaint fails to
state a claim for relief against them.

• COUNTS 2, 3, and 5 are DISMISSED without prejudice and COUNT 4 is
DISMISSED with prejudice against ALL DEFENDANTS because the Complaint
fails to state a claim upon which relief may be granted against them.

Defendants DAVID EBRAHIM and JOHN FRANKE 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.
Because this suit addresses one or more medical claims, the Clerk’s Office is DIRECTED
to enter the standard qualified protective order pursuant to the Health Insurance Portability and
Accountability Act. The Clerk’s Office is also DIRECTED to TERMINATE Defendant
KIMBERLY DUNN as a party in CM/ECF and STRIKE the Motion to be Transferred (Doc. 11).
IT IS ORDERED that the Motion to be Transferred (Doc. 18) is DENIED.
As to COUNT 1, the Clerk of Court shall prepare for Defendants DAVID EBRAHIM
(individual capacity only) and JOHN FRANKE (official capacity only): (1) Form 5 (Notice of a
Lawsuit and Request to Waive Service of a Summons), and (2) Form 6 (Waiver of Service of
Summons). The Clerk is DIRECTED to mail these forms, a copy of the Complaint (Doc. 1), and
this Memorandum and Order to each Defendant’s place of employment as identified by Plaintiff.

If any 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 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 the Defendant’s current work address, or, if not known, the
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.
If judgment is rendered against Plaintiff, and the judgment includes the payment of costs
under Section 1915, Plaintiff will be required to pay the full amount of the costs, even though his
application to proceed in forma pauperis was granted. See 28 U.S.C. § 1915(f)(2)(A).
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: 4/6/2022

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10154826. Public record. Not legal advice.