Fenderson v. Brewer

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

PEORIA DIVISION

AMOS FENDERSON, )

Plaintiff, )

)

v. ) Case No. 1:24-cv-1506-SEM-EIL

)

L. BREWER, et al., )

Defendants. )

MERIT REVIEW ORDER

SUE E. MYERSCOUGH, United States District Judge:

Plaintiff pro se Amos Fenderson has filed a Complaint (Doc. 1)

under 42 U.S.C. § 1983, which is now before the Court for

screening. Plaintiff has also filed a Motion to Request Counsel (Doc.

5). For the following reasons, the Court finds that Plaintiff may

proceed on Eighth Amendment deliberate claims against certain

Defendants, but that the remaining Defendants will be dismissed

and his request for counsel denied at this time.

I. COMPLAINT

A. Screening Standard

The Court must “screen” Plaintiff’s Complaint and dismiss any

legally insufficient claim or the entire action if warranted. 28 U.S.C.

§ 1915A. A claim is legally insufficient if it “(1) is frivolous,

malicious, or fails to state a claim upon which relief may be

granted; or (2) seeks monetary relief from a defendant who is

immune from such relief.” Id. In reviewing the complaint, the Court

accepts the factual allegations as accurate, liberally construing

them in the plaintiff’s favor. Turley v. Rednour, 729 F.3d 645, 649

(7th Cir. 2013). However, conclusory statements and labels are

insufficient. Enough facts must be provided to “state a claim for

relief that is plausible on its face.” Alexander v. United States, 721

F.3d 418, 422 (7th Cir. 2013) (citation omitted).

B. Facts Alleged

Plaintiff, who is currently housed at Alton Mental Health

Center, files suit for actions that occurred at the Peoria County Jail

(“the Jail”) in May 2024. Plaintiff’s Complaint names as Defendants

D.C.S. Russel Owens, C/O L. Brewer, nurse David, mental health

professional Becky Ala, Dr. Monica Duran, mental health

professional Bernice Gordon Young, D.C.S. Katherin Pierson, D.C.S.

Alexander Eddlemon, Sheriff Chris Watkins, Correctional

Superintendent Carmisha Turner, A.C.S. Brian Johnson, Sgt.

Rainy, Sgt. B. Garcia, C/O Reese, and I. Roberts.

Plaintiff alleges that on May 5, 2024, at approximately 12:30

p.m., he swallowed a nail clipper. He informed Defendant Brewer,

who returned to Plaintiff’s cell approximately 15 minutes later and

informed Plaintiff that he was to go to the Health Care Unit (“HCU”).

Plaintiff invoked his right to refuse care. Defendant Brewer

returned approximately 10 minutes later with Defendant Owens,

who was able to persuade Plaintiff to go to the HCU.

Once in the HCU, Plaintiff was informed by Defendant David

that Defendant Duran said Plaintiff needed to go to the emergency

room. Plaintiff refused. At that time, Defendant Owens allegedly

asked Plaintiff if he would consent to a scan, after which

Defendants Owens, Brewer, and David used the body scanner in

the Jail intake area to confirm the presence of a nail clipper inside

Plaintiff’s body.

Defendant David again asked Plaintiff if he wanted care and

Plaintiff again declined. Defendant Owens then allegedly told

Defendant Brewer to return Plaintiff to his housing pod. Plaintiff

alleges that none of Defendants had Plaintiff assessed by mental

health providers who could have placed him on suicide watch.

Defendant Brewer placed Plaintiff back into his cell. Soon

thereafter, Plaintiff allegedly used a sharp piece of metal to mutilate

himself. Another detainee notified a non-party officer that Plaintiff

needed urgent medical care.

Defendant David arrived and advised Defendant Rainy that

Plaintiff needed to go to the hospital due to ongoing self-harming.

Plaintiff again refused, after which Defendant Johnson allegedly

ordered that Plaintiff be placed into a restraint chair. Defendant

Ala evaluated Plaintiff at that time.

At approximately 2:30 p.m. Plaintiff allegedly informed staff

that he consented to go to the hospital to receive treatment.

However, due to alleged staff shortages Plaintiff was not taken to

the hospital until after 8:00 p.m. At the hospital, Plaintiff received

x-rays and stitches. However, because of the delay in going to the

hospital, Plaintiff alleges that the nail clippers had already “passed

down” and could not be medically removed.

Plaintiff alleges he was returned to the Jail, where he was

again restrained in a chair and was forced to urinate and defecate

on himself. Four days later, Plaintiff alleges that Defendant Young

spoke with Defendant Duran and Plaintiff was allowed to be

removed from the cell and placed inside a restraint cell.

However, less than 12 hours later, Plaintiff was allegedly

placed back into the chair under Defendant Duran’s orders and due

to an alleged miscommunication with Defendant Young. Plaintiff

alleges that he notified Defendant Roberts that he needed to use the

toilet on multiple occasions but that, by the time Defendants Garcia

and Reese arrived three hours later, Plaintiff had already soiled

himself.

On May 17, 2024, Plaintiff alleges that the nail clippers passed

out of his system and he was released from the restraint chair.

C. Analysis

Plaintiff has pled sufficient facts to proceed with a deliberate

indifference claim against Defendants Brewer, Owens, David, and

Duran, based upon Plaintiff’s evident risk of self-harm following the

first incident with the nail clipper. Miranda v. County of Lake, 900

F.3d 335, 349 (7th Cir. 2018) (“[A] jail or prison official’s failure to

protect an inmate from self-harm [is] one way of establishing

deliberate indifference to a serious medical need.”).

Plaintiff may also proceed with a conditions of confinement

claim against Defendants Duran, Young, Garcia, Reese, and

Roberts for their involvement in placing Plaintiff in a restraint chair

for days, during which he was forced to remain covered in his own

urine and feces. Gillis v. Litscher, 468 F.3d 488, 493–94 (7th Cir.

2006) (conditions of confinement claim survives summary judgment

when prisoner on clinical observation was stripped naked, placed in

cell without mattress or bedding, became suicidal, and smeared

feces in his cell).

However, Plaintiff may not proceed on these claims against

Defendants Pierson, Eddlemon, Watkins, and Turner. “Section

1983 creates a cause of action based on personal liability and

predicated upon fault; thus, liability does not attach unless the

individual defendant caused or participated in a constitutional

deprivation.” Vance v. Peters, 97 F.3d 987, 991 (7th Cir. 1996).

Therefore, to hold Defendants liable under § 1983, Plaintiff must

allege that “the defendants were personally responsible for the

deprivation of their rights.” Wilson v. Warren Cty., Illinois, 830 F.3d

464, 469 (7th Cir. 2016). Plaintiff has not done so. His Complaint

contains no allegations whatsoever regarding any action or inaction

taken by Defendants Pierson, Eddlemon, Watkins, and Turner.

These Defendants may not be held liable due only to their role as

supervisors. Smith v. Gomez, 550 F.3d 613, 616 (7th Cir. 2008)

(supervisor liability not permitted under § 1983).

In addition, Plaintiff may not proceed on claims against

Defendant Ala or Rainy.

Plaintiff alleges that Defendant Ala, a mental health

professional, evaluated him after the second instance of self-harm.

But Plaintiff does not allege that any correctional or medical staff

made Defendant Ala aware of Plaintiff’s first incident. Therefore,

Defendant Ala cannot be held liable for deliberate indifference. See

Daugherty v. Harrington, 906 F.3d 606, 611 (7th Cir. 2018) (Plaintiff

must show that the defendant actually “knew of and consciously

disregarded an excessive risk to his health and safety.”). Likewise,

Plaintiff does not allege any facts suggesting that Defendant Ala’s

assessment after the second incident was “so plainly inappropriate

as to permit the inference that [she] intentionally or recklessly

disregarded his needs.” Hayes v. Snyder, 546 F.3d 516, 524 (7th

Cir. 2008).

As for Defendant Rainy, Plaintiff alleges only that Defendant

David advised Rainy, a correctional sergeant, that Plaintiff needed

to go to the hospital after the second instance of self-harm.

However, Plaintiff refused care and was then placed by another

Defendant (Johnson) into the restraint chair for evaluation by

mental health professionals. Plaintiff does not allege that

Defendant Rainy had any further role in Plaintiff’s ability to access

mental or medical care. See Greeno v. Daley, 414 F.3d 645, 656

(7th Cir. 2005) (“If a prisoner is under the care of medical experts...

a non-medical prison official will generally be justified in believing

that the prisoner is in capable hands.”).

II. REQUEST FOR COUNSEL

A pro se litigant has no right to counsel in a civil case. Olson v.

Morgan, 750 F.3d 708, 711 (7th Cir. 2014). However, the federal

statute authorizing in forma pauperis status provides a court “may

request an attorney to represent any person unable to afford

counsel.” See 28 U.S.C. 1915(e)(1). A court does not have the

authority to require an attorney to accept pro bono appointments in

civil cases. Pruitt v. Mote, 503 F.3d 647, 653 (7th Cir. 2007).

When considering a request for counsel by a pro se litigant the

Court undertakes a two-part inquiry: (1) whether the plaintiff made

a reasonable attempt to obtain counsel or has 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.

Pruitt, 503 F.3d at 655.

As to the first inquiry, plaintiffs normally make this showing

by filing copies of letters sent to several attorneys seeking

assistance, along with copies of the responses they received from

the attorneys they contacted. Plaintiff has not met this first,

threshold requirement. Therefore, Plaintiff’s Motion must be

denied, without prejudice.

Plaintiff may renew the request after he makes a reasonable

attempt to obtain counsel, or if he plausibly asserts that he is

unable to make such an attempt.

IT IS THEREFORE ORDERED:

1) According to the Court’s Merit Review of Plaintiff’s

Complaint under 28 U.S.C. § 1915A, Plaintiff has alleged

enough facts to proceed with an Eighth Amendment claim of

deliberate indifference to a risk of self-harm against Defendants

Brewer, Owens, David, and Duran and an Eighth Amendment

conditions of confinement claim against Defendants Duran,

Young, Garcia, Reese, and Roberts. Additional claims shall not

be included in the case, except at the Court’s discretion on

motion by a party for good cause shown or under Federal Rule

of Civil Procedure 15.

2) The Clerk is directed to dismiss Defendants Pierson,

Eddlemon, Watkins, Turner, Ala and Rainy as Defendants in

this matter.

3) Plaintiff’s Motion to Request Counsel [5] is DENIED

without prejudice.

4) This case is now in the process of service. The Court

advises Plaintiff to wait until counsel has appeared for

Defendants before filing any motions, to give 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

evidence to the Court unless otherwise directed by the Court.

5) The Court will attempt service on Defendants by

mailing a waiver of service. Defendants have sixty days from

service to file an Answer. If a Defendant has not filed an

Answer or appeared through counsel within ninety days of the

entry of this Order, Plaintiff may file a motion requesting the

status of service. After Defendants have been served, the Court

will enter an order setting discovery and dispositive motion

deadlines.

6) Defendants shall file an Answer within sixty days of the

date the Clerk sends the waiver. A motion to dismiss is not an

answer. The Answer should include all defenses appropriate

under the Federal Rules. The Answer and subsequent pleadings

shall be to the issues and claims stated in this Order. In

general, an answer sets forth Defendants’ positions. The Court

does not rule on the merits of those positions unless and until

a Defendant files a motion. Therefore, no response to an

Answer is necessary or will be considered.

7) This District uses electronic filing, which means that,

after Defendants’ counsel has filed an appearance, counsel will

automatically receive electronic notice of any motion or other

paper filed by Plaintiff with the Clerk. Therefore, Plaintiff does

not need to mail copies of motions and other documents that

Plaintiff has filed with the Clerk to Defendants’ counsel.

However, this does not apply to discovery requests and

responses. Discovery requests and responses are not filed with

the Clerk. Instead, Plaintiff must mail his discovery requests

and responses directly to Defendants’ counsel. Discovery

requests or responses sent to the Clerk will be returned unfiled

unless they are attached to and the subject of a motion to

compel. Discovery does not begin until Defendants’ counsel has

filed an appearance, and the Court has entered a scheduling

order, which will explain the discovery process in more detail.

8) Concerning a Defendant who no longer works at the

address provided by Plaintiff, the entity for whom that

Defendant worked while at that address shall submit to the

Clerk said Defendant’s current work address or, if not known,

said Defendant’s forwarding address. This information shall be

used only for effectuating service. Documentation of forwarding

addresses shall be retained only by the Clerk and shall not be

maintained in the public docket nor disclosed by the Clerk.

9) Defendants’ counsel is granted leave to depose Plaintiff.

Defendants’ counsel shall arrange the time for the deposition.

10) Plaintiff shall immediately notify the Court, in writing,

of any change in his mailing address and telephone number.

Plaintiff’s failure to inform the Court of a change in mailing

address or phone number will result in the dismissal of this

lawsuit with prejudice.

11) If a Defendant fails to sign and return a waiver of

service to the Clerk within thirty days after the waiver is sent,

the Court will take appropriate steps to effect formal service

through the U.S. Marshals service on that Defendant and will

require that Defendant to pay the total costs of formal service

under Federal Rule of Civil Procedure 4(d)(2).

12) The Court directs the Clerk to enter the standard

qualified protective order under the Health Insurance

Portability and Accountability Act.

13) The Court directs the Clerk to attempt service on

Defendants under the standard procedures.

ENTERED May 16, 2025.

s/ Sue E. Myerscough

____________________________________

SUE E. MYERSCOUGH

UNITED STATES DISTRICT JUDGE