DARDEN v. MARTINI

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

JAYDEN W. DARDEN, )

)

Plaintiff, )

)

v. ) No. 1:23-cv-02250-JPH-CSW

)

KARL MARTINI, )

VOLGEMAN Sgt., )

WIEGAND CO, )

COLE Sgt., )

BRYANT Cpt., )

ROSS CO, )

THESSAN CO, )

FAWVER CO, )

BRANHAM CO, )

LAWSON Sgt., )

BOGGS Lt., )

VENSOR CO, )

)

Defendants. )

ORDER DISMISSING COMPLAINT, DIRECTING FILING OF AMENDED

COMPLAINT, AND DENYING MOTION FOR COUNSEL

Plaintiff Jayden Darden is (or was) a prisoner currently incarcerated at

Westville Correctional Facility. He filed this civil action alleging he was subjected

to unconstitutional conditions of confinement while previously a prisoner at

Correctional Industrial Facility. Because the plaintiff is a "prisoner," this Court

has an obligation to screen the complaint before service on the defendants. 28

U.S.C. § 1915A(a), (c).

I. Screening Standard

When screening a complaint, the Court must dismiss any portion that is

frivolous or malicious, fails to state a claim for relief, or seeks monetary relief

against a defendant who is immune from such relief. 28 U.S.C. § 1915A(b). To

determine whether the complaint states a claim, the Court applies the same

standard as when addressing a motion to dismiss under Federal Rule of Civil

Procedure 12(b)(6). See Schillinger v. Kiley, 954 F.3d 990, 993 (7th Cir. 2020).

Under that standard, a complaint must include "enough facts to state a claim to

relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007). "A claim has facial plausibility when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The

Court construes pro se complaints liberally and holds them to a "less stringent

standard than formal pleadings drafted by lawyers." Cesal v. Moats, 851 F.3d

714, 720 (7th Cir. 2017).

II. The Complaint

Plaintiff names as defendants: (1) Karl Martini; (2) Sgt. Volgeman; (3) CO

Wiegand; (4) Sgt. Cole; (5) Cpt. Bryant; (6) CO Ross; (7) CO Thessan; (8) CO

Fawver; (9) CO Branham; (10) Sgt. Lawson; (11) Lt. Boggs; and (12) CO Vensor.

Plaintiff alleges that at approximately 11 a.m. on October 5, 2023, he

became upset and threw feces at an officer and also smeared feces all over

himself and his cell. Officers removed Plaintiff from the cell and placed him in a

different cell for a few hours. Officers used water to wash down Plaintiff's cell but

failed to remove all the feces from it. Plaintiff complained about his cell not being

adequately cleaned when he was returned to it at about 4 p.m. on October 5.

Plaintiff's requests to have his cell more thoroughly cleaned or to receive cleaning

supplies himself were ignored until October 7 at approximately 5 p.m.

Plaintiff seeks damages.

III. Dismissal of Complaint

Applying the screening standard to the facts alleged in the complaint, the

complaint must be dismissed for failure to state a claim upon which relief may

be granted.

This action is brought pursuant to 42 U.S.C. § 1983. Section 1983

"provides a cause of action for the deprivation of constitutional rights by persons

acting under color of state law." Torres v. Madrid, 141 S. Ct. 989, 994 (2020).

"[T]he first step in any [§ 1983] claim is to identify the specific constitutional right

infringed." Albright v. Oliver, 510 U.S. 266, 271 (1994). In this case, it is the

Eighth Amendment.

In cases involving the conditions of confinement in a prison, two

elements are required to establish a violation of

the Eighth Amendment's prohibition against cruel and unusual

punishment: first, an objective showing that the conditions are

sufficiently serious—i.e., that they deny the inmate the minimal

civilized measure of life's necessities, creating an excessive risk to

the inmate's health and safety—and second, a subjective showing of

a defendant's culpable state of mind.

Isby v. Brown, 856 F.3d 508, 521 (7th Cir. 2017) (internal citations and quotation

omitted).

Prisoners are entitled to at least minimally-sanitary living conditions. See

Johnson v. Pelker, 891 F.2d 136, 139 (7th Cir. 1989). The cleanliness (or lack

thereof) of a prison's living quarters may be actionable if the conditions are

"unusually dirty or unhealthy . . . ." Lunsford v. Bennett, 17 F.3d 1574, 1580

(7th Cir. 1994). When considering a claim such as Plaintiff's, the degree of alleged

filth must be balanced against the time the inmate was forced to endure it. See

McBride v. Deer, 240 F.3d 1287, 1291–92 (10th Cir. 2001).

Plaintiff alleges that he had to spend approximately two days, or forty-eight

hours, in a cell that was inadequately cleaned after he had smeared his feces all

over it. This is a relatively brief period of time that courts have often concluded,

under similar circumstances, is insufficient to state a claim of unconstitutional

conditions of confinement in violation of the Eighth Amendment. “[T]he fact that

some inmates smear feces on the walls of their [own] cells does not, without

more, give rise to an unconstitutional condition of confinement.” Whitney v.

Wetzel, 2015 WL 4920071, at *8 (W.D. Pa. Aug. 12, 2015); see also Ward v.

Buchanan, 2020 WL 7047820, at *2 (E.D. Wis. Dec. 1, 2020) (housing inmate in

a cell where he had smeared his own feces on the wall does not violate the Eighth

Amendment and conditions of confinement claim dismissed at screening) (citing

Farmer v. Brennan, 511 U.S. 825, 832 (1994)).

Of course, leaving an inmate in a feces-covered cell for an indefinite

amount of time would be impermissible, no matter if the inmate had caused the

unsanitary conditions in the first place. But, two days is not in and of itself an

unconstitutional amount of time. See Newmones v. Ransom, 2024 WL 624239,

at *4 (W.D. Pa. Feb. 14, 2024) (two days in cell covered in inmate's feces did not

state an Eighth Amendment claim); Harris v. Fleming, 839 F.2d 1232, 1235–36

(7th Cir. 1988) (five day stay in “filthy, roach-infested cell” not unconstitutional).

Given the circumstances that caused Plaintiff's cell to become dirty in the

first place, and that some officers did attempt to clean the cell initially (though

not to Plaintiff's satisfaction), and that the dirtiness only lasted two days, the

Court concludes that Plaintiff's allegations fail to state a claim that he was

subjected to unconstitutional conditions of confinement in violation of the Eighth

Amendment. The complaint is subject to dismissal.

IV. Opportunity to File an Amended Complaint

The dismissal of the complaint will not in this instance lead to the

dismissal of the action at present. “The usual standard in civil cases is to allow

defective pleadings to be corrected, especially in early stages, at least where

amendment would not be futile.” Abu-Shawish v. United States, 898 F.3d 726,

738 (7th Cir. 2018). In the interest of justice, the court will allow plaintiff to

amend his complaint if, after reviewing this court's order, he believes that he can

state a viable claim for relief, consistent with the allegations he has already

made. See Tate v. SCR Med. Transp., 809 F.3d 343, 346 (7th Cir. 2015) ("We've

often said that before dismissing a case under 28 U.S.C. § 1915(e)(2)(B)(ii) a judge

should give the litigant, especially a pro se litigant, an opportunity to amend his

complaint."); Luevano v. Wal-Mart, 722 F.3d 1014 (7th Cir. 2013).

The plaintiff shall have through August 28, 2024, to file an amended

complaint.

The amended complaint must (a) contain a short and plain statement of

the claim showing that the plaintiff is entitled to relief, which is sufficient to

provide the defendant with fair notice of the claim and its basis; (b) include a

demand for the relief sought; and (c) identify what injury he claims to have

suffered and what persons are responsible for each such injury. In organizing

his complaint, the plaintiff may benefit from utilizing the Court's complaint form.

The clerk is directed to include a copy of the prisoner civil rights complaint form

along with the plaintiff's copy of this Order.

Any amended complaint should have the proper case number, 1:23-cv-

02250-JPH-CSW, and the words "Amended Complaint" on the first page. The

amended complaint will completely replace the original. See Beal v. Beller, 847

F.3d 897, 901 (7th Cir. 2017) ("For pleading purposes, once an amended

complaint is filed, the original complaint drops out of the picture."). Therefore, it

must set out every defendant, claim, and factual allegation the plaintiff wishes

to pursue in this action.

If the plaintiff files an amended complaint, it will be screened pursuant to

28 U.S.C. § 1915A(b). If no amended complaint is filed, this action will be

dismissed without further notice or opportunity to show cause.

V. Motion for Counsel

Plaintiff has also filed a motion for counsel. Litigants in federal civil cases

do not have a constitutional or statutory right to court-appointed counsel.

Walker v. Price, 900 F.3d 933, 938 (7th Cir. 2018). Instead, 28 U.S.C. § 1915(e)(1)

gives courts the authority to "request" counsel. Mallard v. United States District

Court, 490 U.S. 296, 300 (1989). As a practical matter, there are not enough

lawyers willing and qualified to accept a pro bono assignment in every pro se

case. See Watts v. Kidman, 42 F.4th 755, 764 (7th Cir. 2022) (explaining that

courts must be careful stewards of the limited resource of volunteer lawyers);

Olson v. Morgan, 750 F.3d 708, 711 (7th Cir. 2014) ("Whether to recruit an

attorney is a difficult decision: Almost everyone would benefit from having a

lawyer, but there are too many indigent litigants and too few lawyers willing and

able to volunteer for these cases.").

"'When confronted with a request under § 1915(e)(1) for pro bono counsel,

the district court is to make the following inquiries: (1) has the indigent plaintiff

made a reasonable attempt to obtain counsel or been effectively precluded from

doing so; and if so, (2) given the difficulty of the case, does the plaintiff appear

competent to litigate it himself?'" Eagan v. Dempsey, 987 F.3d 667, 682 (7th Cir.

2021) (quoting Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007)). These two

questions "must guide" the Court's determination whether to attempt to recruit

counsel. Id. These questions require an individualized assessment of the

plaintiff, the claims, and the stage of litigation. See Pruitt, 503 F.3d at 655-56.

The first question, whether litigants have made a reasonable attempt to

secure private counsel on their own, "is a mandatory, threshold inquiry that

must be determined before moving to the second inquiry." Eagan, 987 F.3d at

682; see also Thomas v. Anderson, 912 F.3d 971, 978 (7th Cir. 2019) (because

plaintiff did not show that he tried to obtain counsel on his own or that he was

precluded from doing so, the judge's denial of these requests was not an abuse

of discretion). Plaintiff has not indicated whether he has attempted to contact

any attorneys with requests for representation. Although he asserts having

difficulty looking up contact information while incarcerated, that is a limitation

that many prisoners face. Accordingly, the Court finds that he has not made a

reasonable effort to recruit counsel on his own before seeking the Court's

assistance. See Thomas, 912 F.3d at 978. His motion for counsel, dkt. [11], is

denied without prejudice.

VI. Duty to Update Address

The Court notes that in another case before this Court, Plaintiff has filed

a motion indicating in part that he anticipated being released from incarceration

on July 3, 2024. See Darden v. Martini, 1:23-cv-02251-JRS-CSW, dkt. 14. His

release from incarceration seems to be confirmed by information on the website

of the Indiana Department of Correction. Plaintiff has not filed an updated

address with the Court, either in that case or this case. He is required to do so

within ten days of any change of address, as the Court previously informed

Plaintiff in its "Notice to Pro Se Litigants." Dkt. 5. He must do so by August 28,

2024, or the case will be subject to immediate dismissal for failure to prosecute.

VII. Conclusion

Plaintiff shall have through August 28, 2024, to file an amended

complaint. The clerk is directed to include a copy of the prisoner civil rights

complaint form along with the plaintiff's copy of this Order.

Additionally, Plaintiff must update his address with the Court by August

28, 2024, or this case will be subject to immediate dismissal for failure to

prosecute.

Finally, Plaintiff's motion for counsel, dkt. [11], is denied without

prejudice.

SO ORDERED.

Date: 7/31/2024 anus Patna danlove

James Patrick Hanlon

United States District Judge

Southern District of Indiana

Distribution:

JAYDEN W. DARDEN

265425

WESTVILLE - CF

WESTVILLE CORRECTIONAL FACILITY

Inmate Mail/Parcels

5501 South 1100 West

WESTVILLE, IN 46391