Epps v. Sproul

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

DESHAWN CARLOS EPPS,

#26416-075,

Plaintiff, Case No. 22-cv-00514-SPM

v.

WARDEN SPROUL,

AW SOSA,

AW LECLAIR,

MS. DUNN,

UM BYRUM,

UM WALLACE,

LT. HENDERSON,

LT. BLAIR,

LT. HUGGINS, and

J. HUGHES,

Defendants.

MEMORANDUM AND ORDER

MCGLYNN, District Judge:

Plaintiff Deshawn Carlos Epps, a federal prisoner incarcerated at the United States

Penitentiary located in Marion, Illinois (“USP Marion”), commenced this action for violations of

his constitutional rights by filing a document titled “Motion for Injunction.” (Doc. 1). Because

Epps included in the motion a case caption listing defendants, clearly stated the relief he is seeking,

and explained why he believes he is entitled to that relief, the Court construed the motion for

injunction as both a complaint and a motion for preliminary injunction. (Doc. 3). The Court denied

the motion for preliminary injunction and advised Epps that the Complaint would be reviewed

pursuant to 28 U.S.C. §1983 in a separate order. On April 13, 2022, Epps filed a second

preliminary injunction motion. (Doc. 4).

Prior to addressing the motion, the Court will conduct a preliminary review of the

Complaint pursuant to 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. See

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

Epps alleges the following: On December 10, 2021, escorted by another inmate, Epps went

to the medical unit because he was experiencing loss of vision. (Doc. 1, 4). He spoke to Nurse

Hughes and told Hughes that he was blind. Hughes told Epps that his condition was not severe

enough to send him to the emergency room and instructed Epps to back to his housing unit. The

next day, Epps woke up completely blind. He informed Officer Lunon, who called medical. Epps

was taken to a hospital. He was told by the optometrist he would never see again. Epps returned

to USP Marion on December 14, 2021.

When he returned to USP Marion, Epps was placed in the special housing unit. He was

told that he would be “shipped to a medical care level 3 facility.” After a few weeks in the special

housing unit, Defendants were “trying to kick [him] out to the general population.” (Doc. 1, p. 2).

Epps filed “BP-8” forms complaining that he did not feel safe moving back to general population

and into a cell with two cellmates because he is legally blind and could not defend himself. He did

not receive a response from Warden Sproul, Assistant Warden Sosa, Assistant Warden LeClair,

Dunn, Unit Manager Byrum, or Unit Manager Wallace. Epps also informed Defendants that he

would like physical and occupational therapy and to see an outside optometrist for his eye

condition but did not receive any of these services.

On January 27, 2022, Epps was placed in general population and assigned a cell with two

other cellmates. One of the cellmates was the subject of multiple PREA investigations for rape of

other inmates and a known sex offender. Epps asked for a cell change, and his requests were

denied.

On February 14, 2022, Epps “was placed on call-out for optometry.” He was given a paper

stating he had “low-vision, care level 2, and sunglasses.” (Doc. 1, p. 2). Later that day, “[a]fter

being approached and threatened,” Epps and his cellmate had a physical altercation. (Doc. 4, p. 2).

While at USP Marion staff have accused Epps of being a sex offender, his mail has gone

missing, and his re-entry plan has been taken away.

PRELIMINARY DISMISSALS

Epps lists Henderson, Blair, and Huggins in the case caption as Defendants but does not

assert any allegations against these individuals in the body of the Complaint. Merely listing a

defendant’s name in the case caption is not sufficient to state a claim against that individual. See

Collins v. Kibort, 143 F.3d 331, 334 (7th Cir. 1998). Therefore, the claims against Henderson,

Blair, and Huggins are dismissed without prejudice, and they will be terminated as Defendants.

DISCUSSION

Epps does not specify under which statute he asserts his claims. Being a federal inmate,

the Court assumes that he has filed this lawsuit pursuant to Bivens v. Six Unknown Named Agents,

403 U.S. 388 (1971). In Bivens, the Supreme Court recognized that “victims of a constitutional

violation by a federal agent have a right to recover damages against the official in federal court

despite the absence of any statute conferring such a right.” Carlson v. Green, 446 U.S. 14, 18

(1980). The commonly accepted Bivens claims are those for: excessive force in violation of the

Fourth Amendment; violation of the Fifth Amendment right to due process; and, violation of the

Eighth Amendment via deliberate indifference to a serious medical need. See Bivens, 403 U.S.

388; Davis v. Passman, 442 U.S. 228 (1979) (Fifth Amendment Due Process damage remedy for

gender-based termination of female government employee); Carlson, 446 U.S. 14 (Eighth

Amendment deliberate indifference claim allowed regarding deceased inmate's asthma care

regime). The Supreme Court has recently emphasized the narrow bounds of claims for damages

against the federal government that can proceed under the guise of Bivens. See e.g. Hernandez v.

Mesa, 140 S.Ct. 735 (Feb. 25, 2020) (discussing the very narrow acceptance of newly recognized

categories of Bivens claims); Ziglar v. Abbasi, 137 S.C.t 1843 (2017) (same).

Accordingly, based on the allegations of the Complaint, the Court finds it convenient to

designate the following counts:

Count 1: Eighth Amendment claim against Defendants for deliberate

indifference to Epps’s loss of vision.

Count 2: Eighth Amendment claim against Defendants for failing to protect

Epps by allowing him to return to general population.

The parties and the Court will use this designation 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 Twombly1 pleading standard.

Count 1

Count 1 will proceed against Nurse Hughes for denying Epps medical treatment when he

came to the health care unit on December 10, 2021 complaining of sudden loss of vision.

Count 1 is dismissed, however, as to Defendants Sproul, Sosa, LeClair, Dunn, Byrum, and

Wallace. Deliberate indifference requires that each defendant “actually knew of and disregarded a

substantial risk of harm.” Mitchell v. Kallas, 895 F. 3d 492, 498 (7th Cir. 2018). Here, Epps has

not asserted that Defendants had any knowledge of his serious medical condition, the loss of vision,

and then ignored his complaints for treatment. He states generally that he wrote grievances “to all

1 See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (7th Cir. 2007).

above defendants and never got a response.” (Doc. 1, p. 2). But he does not specify what he stated

in the grievances. It is not clear that he was grieving his housing situation or needed medical

treatment or to whom the grievances were sent. (See also Doc. 4, p. 1).

Epps also asserts that “I informed them I would like physical, occupational therapy I never

received it. And go to outside optometry for my eye condition. I never received [those] services.”

(Doc. 1, p. 2). Epps does not explain the need for physical and occupational therapy regarding his

vision loss or who he “informed” that he needed certain medical services. Because the Court cannot

determine from the Complaint which of the remaining Defendants had sufficient knowledge and

personal involvement in Epps’s medical care to support a claim that they were deliberately

indifferent, Count 1 is dismissed without prejudice as to Sproul, Sosa, LeClair, Dunn, Byrum, and

Wallace.

Count 2

Count 2 will also be dismissed without prejudice. Epps claims that “all my defendants

[were] trying to kick me out of the general population.” (Doc. 1, p. 2). Epps states that he informed

“staff” that he should not be put back in general population because he could not defend himself.

He was eventually returned to general population and was physical assaulted by his cellmate.

Epps does not assert sufficient allegations to proceed on a failure to protect claim. To

successfully state a claim, a plaintiff must claim that (1) “he is incarcerated under conditions posing

a substantial risk of serious harm,” and, (2) prison officials acted with “deliberate indifference” to

that risk. Farmer v. Brennan, 511 U.S. 825, 834 (1994). Here, Epps states that Defendants were in

the process of moving him from special housing to general population, but he does not assert that

he informed any of them that he was at risk of serious harm, only that he told “staff.” Thus, Count

2 is dismissed without prejudice.

PRELIMINARY INJUNCTION

Epps has filed a motion seeking emergency relief. (Doc. 4). In the motion, Epps recites

similar allegations stated in the Complaint. He asks for a medical diagnosis and that he be

immediately transferred to a medical facility or a care level III.

In order to obtain relief, whether through a temporary restraining order (“TRO”) or a

preliminary injunction, Epps must demonstrate that: (1) his underlying case has some likelihood

of success on the merits; (2) no adequate remedy at law exists; and (3) he will suffer irreparable

harm without the injunction. Woods v. Buss, 496 F.3d 620, 622 (7th Cir. 2007). A preliminary

injunction is “an extraordinary and drastic remedy, one that should not be granted unless the

movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S.

968, 972 (1997).

Furthermore, “a preliminary injunction is appropriate only if it seeks relief of the same

character sought in the underlying suit, and deals with a matter presented in that underlying suit.”

Daniels v. Dumsdorff, No. 19-cv-00394, 2019 WL 3322344 at *1 (S.D. Ill. July 24, 2019) (quoting

Hallows v. Madison Cty. Jail, No. 18-cv-881-JPG, 2018 WL 2118082, at *6 (S.D. Ill. May 8,

2018) (internal citations omitted)). See also Devose v. Herrington, 42 F.3d 470, 471 (8th Cir.

1994); Bird v. Barr, 19-cv-1581 (KBJ), 2020 WL 4219784, at *2 (D.C. Cir. July 23, 2020) (noting

that a court “only possesses the power to afford preliminary injunctive relief that is related to the

claims at issue in the litigation”). “An injunction, like any ‘enforcement action,’ may be entered

only against a litigant, that is, a party that has been served and is under the jurisdiction of the

district court.” Maddox v. Wexford Health Sources, Inc., 528 F. App’x 669, 672 (7th Cir.

2013) (quoting Lake Shore Asset Mgmt., Ltd. v. Commodity Futures Trading Comm’n, 511 F.3d

762, 767 (7th Cir. 2007)).

The Court finds that Epps is not entitled to preliminary injunctive relief at this time. Epps

is currently proceeding on a single Eighth Amendment claim against Nurse Hughes for denying

him medical treatment on December 10, 2021. Although Epps claims he has not received a

diagnosis and currently needs additional medical care, he has not asserted these allegations against

Nurse Hughes, the only remaining defendant in this action. Epps has failed to state a successful

claim for relief against any medical professional currently treating him or any staff in charge of

medical care or housing placement at USP Marion, and he cannot seek injunctive relief from

individuals who are not parties to this action. For these reasons, Epps motion for emergency

injunctive relief is DENIED.

FILING FEE

Epps was directed to pay the full filing fee or file a Motion to Proceed IFP, along with a

certification form signed by an institutional officer and a trust fund statement for the six month

period immediately preceding the filing of this action by April 13, 2022. (Doc. 3). He was warned

that failure to do so would result in dismissal of this case. The deadline has passed, and Epps has

not complied with the Court’s Order.

The Court will sua sponte give Epps additional time to satisfy his filing fee requirement.

Epps shall have until May 9, 2022 to pay his filing fee or submit a properly completed IFP

application. Failure to comply with this Order will result in dismissal of this action for

want of prosecution and/or for failure to comply with a court order under Federal Rule

of Civil Procedure 41(b).

DISPOSITION

For the reasons stated above, the Complaint survives preliminary review pursuant to

Section 1915A. COUNT 1 will proceed against J. Hughes but is DISMISSED without prejudice

as to Sproul, Sosa, LeClair, Dunn, Byrum, and Wallace. COUNT 2 is DISMISSED without

prejudice. Because there are no surviving claims against Sproul, Sosa, LeClair, Dunn, Byrum,

Wallace, Henderson, Blair, and Huggins they are DISMISSED from this suit without prejudice.

The Clerk of Court is DIRECTED to TERMINATE them as parties.

Because Epps’s claims involve his medical care, the Clerk of Court is DIRECTED to

ENTER the standard qualified protective order pursuant to the Health Insurance Portability and

Accountability Act.

The Motion for Emergency Injunction (Doc. 4) is DENIED.

Epps is DIRECTED to pay his filing fee or submit a properly completed IFP application

by May 9, 2022. This case will be dismissed if Epps fails to comply with this Order. See FED.

R. CIV. P. 41(b).

The Clerk of Court shall prepare for J. Hughes the following: (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, and this

Memorandum and Order to Defendant’s place of employment. If 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 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 Defendant can no longer be found at the work address provided by Epps, the employer

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

Defendant is ORDERED to file an appropriate responsive pleading to the Complaint in a

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

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

Merit Review Order.

Finally, Epps 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 25, 2022

s/Stephen P. McGlynn

STEPHEN P. MCGLYNN

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 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. 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 his time, unless otherwise directed by the Court.