Gibson

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

SHERMAN GIBSON, N28018, )

)

Plaintiff, )

)

vs. ) Case No. 26-cv-863-DWD

)

MATTHEW PLUMMER, )

JOHN DOE 1, )

JOHN DOE 2, )

)

Defendants. )

MEMORANDUM & ORDER

DUGAN, District Judge:

Plaintiff Sherman Gibson, an inmate of the Illinois Department of Corrections

(IDOC) currently detained at Menard Correctional Center (Menard), brings this civil

rights action pursuant to 42 U.S.C. § 1983 for alleged deprivations of his constitutional

rights. The Complaint (Doc. 9) is now before the Court for preliminary review 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)-(b). 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. 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).

IN FORMA PAUPERIS STATUS/LITIGATION HISTORY

A review of publicly available court records demonstrates that in the past, Plaintiff

Gibson has been denied in forma pauperis (“IFP”) status in this District based on the

conclusion that at least three of his previous lawsuits were dismissed for reasons that

incurred a strike under 28 U.S.C. § 1915(g). See Gibson v. Harrington, Case No. 13-cv-316

(S.D. Ill. Apr. 19, 2013) (case initiated by the filing of a motion for a preliminary injunction,

on review under § 1915A the Court concluded that Gibson had three previous strikes and

that he had not demonstrated imminent danger in the motion for a preliminary

injunction, so the entire action was dismissed); Gibson v. Gaetz, Case No. 09-cv-313 (S.D.

Ill. Oct. 20, 2009) (case dismissed because Gibson had three previous strikes and did not

demonstrate imminent danger or pay the filing fee to proceed). The cases that have been

historically treated as strikes are: Gibson v. Ryan, et al., Case No. 01-cv-377 (S.D. Ill. Oct.

29, 2001) (dismissing action for unspecified basis under § 1915A); Gibson, et al., v. Pierson,

et al., Case No. 98-cv-153 (S.D. Ill. Dec. 2, 1998) (dismissing action as frivolous); Gibson, et

al. v. Welborn, et al., Case No. 93-cv-83 (S.D. Ill. Aug. 31, 1993) (dismissing action as

frivolous).

Though the undersigned respects earlier determinations in this District that

Gibson incurred three strikes, the undersigned nevertheless finds it important to

undertake a fresh review of the cases labeled as “strikes,” particularly where the issue

has not been freshly reviewed in more than a decade. See e.g., Wallace v. Baldwin, 895 F.3d

481, 485 (7th Cir. 2018) (a later district court may not defer to an earlier court’s

contemporaneous decision to label a dismissal as a strike). One of the three prior

“strikes”—Gibson v. Ryan, et al.—demands a closer review. The complaint in Gibson v.

Ryan was an attempt to challenge the outcome of prison disciplinary proceedings. Gibson

v. Ryan, et al., Case No. 01-cv-377 (S.D. Ill. 2001) (Doc. 1). The reviewing judge concluded

that Gibson could not state a freestanding conspiracy claim related to his prison

disciplinary proceedings, and the judge also concluded that because Gibson lost good

time credit in the disciplinary proceedings, his sole avenue for recourse began with a state

habeas challenge. This portion of the analysis is consistent with binding precedent that

still exists today, however, the court went on to reason that the action sounded in habeas

and Gibson had not yet pursued any relief in state court, so any federal habeas action was

premature as Gibson had not exhausted state court remedies. The court concluded that

the § 1983 complaint “does not survive review under § 1915A” and it dismissed the action

with prejudice and indicated it counted as a strike.

The difficulty with the dismissal of Gibson v. Ryan is that the order of dismissal

was not clear about the reason or reasons for dismissal. The Seventh Circuit is clear that

if an action is dismissed for multiple reasons, any of which is not an enumerated basis

under §1915A, then the action does not count as a strike. See e.g., Turley v. Gaetz, 625 F.3d

1005, 1012 (7th Cir. 2010) (“Our holding today clarifies that a strike is incurred under §

1915(g) when an inmate’s case is dismissed in its entirety based on the grounds listed in §

1915(g).”). The enumerated grounds for dismissal under § 1915(g) are that a complaint

is dismissed for failure to state a claim, as frivolous, or as malicious. 28 U.S.C. § 1915(g)

(“In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or

proceeding under this section if the prisoner has, one 3 or more prior occasions, while

incarcerated or detained in any facility, brought an action or appeal in a court of the

United States that was dismissed on the grounds that it is frivolous, malicious, or fails to

state a claim upon which relief may be granted, unless the prisoner is under imminent

danger of serious physical injury.”). Gibson’s complaint in Gibson v. Ryan was dismissed

in part for failing to state a conspiracy claim and because a § 1983 action cannot be

brought until prison discipline is overturned, but it was also dismissed because the only

viable claim sounded in habeas and he had not yet pursued his state court habeas

remedies.

The first part of the dismissal jives with the failure to state a claim under § 1915A,

but the second portion concerning a potential habeas claim and the exhaustion of that

claim do not fit neatly within the § 1915A bases for dismissal. It is possible that the judge

thought Gibson’s premature filing of an action without pursuing state court remedies

was frivolous, but the judge did not say so, and this Court cannot now assume the judge

thought that where the record was silent. See Haury v. Lemmon, 656 F.3d 521, 523 (7th Cir.

2011) (reviewing a case dismissed in part for failure to state a claim and in part for lack

of jurisdiction and concluding that where the district court judge did not indicate the

assertion of jurisdiction was frivolous, later courts could not assume frivolity or count the

jurisdictional defect as a strike). Thus, based on the foregoing analysis, the Court is not

convinced that the dismissal of Gibson v. Ryan, et al., Case No. 01-cv-377 (S.D. Ill. 2001)

should be treated as a strike.

Given that the Court does not consider the Gibson v. Ryan, et al., dismissal a strike,

and because it did not locate a substitute strike, it now concludes that Gibson is not struck

out for purposes of § 1915(g). Additionally, the Court questions whether Gibson, et al., v.

Pierson, et al., Case No. 98-cv-153 should be counted as a strike. That case began as a

multi-plaintiff action, and the complaint was initially dismissed under Federal Rule of

Civil Procedure 11 for lacking signatures of all plaintiffs, and under then-existing Local

Rule 8 for the plaintiffs’ failure to fully disclose their litigation history. Id. (Doc. 10).

Ultimately, Plaintiff Gibson never filed a signed complaint, nor did anyone file an

amended complaint. The matter ended up being dismissed, and the judgment stated the

dismissal was “frivolous.” (Doc. 16). Though frivolity is an enumerated basis under §

1915(g) to assess a strike, the undersigned is not persuaded that Mr. Gibson (who never

signed the underlying complaint) really engaged in frivolous conduct in that action rather

than purely failing to follow procedural rules. A dismissal for procedural reasons is not

an enumerated basis for a strike, and thus, the Court does not view Gibson, et al. v. Pierson,

et al., as a strike. Given that the undersigned does not believe Plaintiff’s litigation history

supports a finding of three strikes, the IFP application shall now be evaluated to

determine if Plaintiff qualifies for a partial filing fee or if he must pay the full fee up front.

THE COMPLAINT

Plaintiff presents his factual allegations as three distinct claims. (Doc. 8 at 3-6). In

Claim 1, Plaintiff faults Defendant Plummer (the warden) for failing to address his

complaints about mice, roaches, spiders, insects, excess heat, filth, and a lack of fresh air

in the east cellhouse. (Id. at 3-4). Plaintiff alleges that he has informed Plummer daily

about the various pests. (Id. at 3). He also alleges he has been bitten by pests, and he is

having breathing issues and eye irritation related to the filth. Plaintiff alleges that as

warden, Plummer has a duty to provide adequate conditions of confinement, but he has

chosen to turn a blind eye to the inhumane conditions. (Id. at 4).

In Claim 2, Plaintiff faults John Doe 1 (the east cellhouse sanitation officer) for

failing to sanitize the cellhouse. Plaintiff claims he spoke to John Doe 1 about the dirt and

grime caked on the fans, windows, screens, and vents. (Id. at 4). He alleges he also

complained about the filth and old food caked on the walls, window sills, and floors.

(Id.). Plaintiff argues that John Doe 1 had a responsibility to remedy these issues once he

was informed, but he has failed to act. (Id. at 4-5).

In Claim 3, Plaintiff faults John Doe 2 (the assistant warden of operations) for

denying him access to the courts and keeping him locked in a cell 24 hours per day. (Id.

at 5-6). Plaintiff explains he has written numerous letters to John Doe 2, but nothing has

been done. He alleges that he informed the defendant that being locked in a cell 24/7 is

causing him to mentally and physically deteriorate. (Id. at 6). Plaintiff complains that at

most he may get out of his cell once in a thirty-day period, but this does not always occur.

He further alleges that John Doe 2 is impeding his access to the courts by only running

law library every 30 to 90 days. Plaintiff alleges that as the assistant warden of operations,

John Doe 2 has a duty to ensure out of cell recreation, and access to the law library. He

alleges that John Doe 2’s failure violates his rights under the Eighth Amendment. (Id.).

Plaintiff seeks monetary compensation. (Id. at 7). In support of his complaint, he

submitted copies of two memorandums written to him by Warden Plummer. Both

memos direct Plaintiff to utilize the grievance process and indicate they were sent in

response to correspondence that Plaintiff sent to the governor’s office. (Doc. 8 at 13-14).

To establish a conditions of confinement claim, an inmate must establish (1) a

deprivation that is, from an objective standpoint, sufficiently serious that it results in the

denial of the minimal civilized measure of life’s necessities, and (2) where prison officials

are deliberately indifferent to this state of affairs. Gray v. Hardy, 826 F.3d 1000, 1005 (7th

Cir. 2016), citing Farmer v. Brennan, 511 U.S. 825, 824 (1994). Conditions may be

considered collectively when analyzing a conditions of confinement claim, and the

duration of the allegedly harmful conditions is relevant to the existence of an Eighth

Amendment violation. Id. Many conditions standing alone may not be sufficient to give

rise to an Eighth Amendment conditions of confinement claim, but they must also be

considered collectively. Gillis v. Litscher, 468 F.3d 488, 493 (7th Cir. 2006).

Though Plaintiff’s complaint generally references conditions that could amount to

a constitutional violation, the complaint is relatively threadbare and gives no indication

of the duration of these problems or the severity of the ill-effects. Has Plaintiff resided in

the east cellhouse under these conditions for a month, two months, a year? The duration

of conditions is relevant to the existence of an Eighth Amendment violation.

Additionally, Plaintiff alleges he has been bitten by some sort of pest, his breathing has

been impacted, and his eyes have been irritated. However, he does not explain if he

notified Defendants Plummer or John Doe 1 about these issues, if he sought medical care,

or if these physical issues persist. Without more information about Claims 1 and 2, it is

impossible for the Court to determine yet if the conditions that Plaintiff describes rise to

the level of an Eighth Amendment issue. Claims 1 and 2 against Defendants Plummer

and John Doe 1 are dismissed as insufficiently pled.

As to Claim 3, Plaintiff faults John Doe 2 for impeding his access to the courts and

for not affording him any out-of-cell time. The out-of-cell time assertion is similar to the

conditions of confinement claims discussed above. Plaintiff does not describe how long

he has faced the lack of recreation, other than generically saying he is usually in his cell

24/7, and may only get out once a month. This is not enough information to assess this

claim. How long has Plaintiff been in this housing situation, and for how much of that

time has he been confined to his cell? As for the access to the courts assertion, a successful

access to courts claim requires an inmate to show he has been prevented from pursuing

a meritorious claim or action. See e.g., Ortiz v. Downey, 561 F.3d 664, 671 (7th Cir. 2009)

(an inmate must allege that his alleged lack of access to the courts caused him an actual

injury in pursuing litigation). Plaintiff generally alleges he has not been able to attend

law library, but he does not identify cases or claims where the lack of access has harmed

him. Thus, Plaintiff has failed to state a claim against John Doe 2.

For all of the foregoing reasons, Plaintiff’s Complaint (Doc. 8) must be dismissed

as insufficient to state a claim. Plaintiff shall have 30 days to amend his complaint. An

amended complaint supersedes and replaces the original complaint, rendering the

original complaint void. See Flannery v. Recording Indus. Ass’n of Am., 354 F.3d 632, 638n.

1 (7th Cir. 2004). The Court will not accept piecemeal amendments to the original

pleadings. Thus, the Amended Complaint must stand on its own, without reference to

any previous pleading. If Plaintiff fails to plead an adequate claim, his case will be

dismissed for failure to state a claim, and he will receive a strike. 28 U.S.C. § 1915(g).

MOTION FOR RECONSIDERATION

At the outset of this case, Plaintiff sent the Court a motion for a temporary

restraining order or preliminary injunction (Doc. 1). The Court reviewed the document

and denied the motion because Plaintiff had not yet filed a complaint with claims

sufficient to proceed, and the motion otherwise did not convince the Court that

immediate relief was warranted. (Doc. 3). Plaintiff now seeks reconsideration of the

Court’s denial of injunctive relief on the premise that he has limited law library access,

he has now filed a complaint, and his life is in danger. (Doc. 9 at 1-2). He seeks removal

from the east cellhouse and help with a state court probate matter. (Doc. 9 at 2).

Plaintiff’s Motion (Doc. 9) will be denied because he still has not pled any claims

sufficient to proceed beyond initial review in his complaint (Doc. 8). The Court will not

grant mandatory injunctive relief before Plaintiff has pled valid claims against the named

defendants. Additionally, Plaintiff’s motion is almost entirely conclusory, alleging

without factual support that his life is in danger. Without more information about the

source of the danger, the Court cannot even begin to craft injunctive relief. Thus, the

motion is denied.

DISPOSITION

IT IS HEREBY ORDERED THAT Plaintiff’s Complaint (Doc. 8) is dismissed

without prejudice as insufficient to state a claim. Plaintiff shall have 30 days to file an

amended complaint, failing which this case will be dismissed for failure to state a claim.

If Plaintiff does not amend, this dismissal will become final and will constitute a strike

under § 1915(g). Plaintiff’s Motion to Reconsider (Doc. 9) is DENIED.

The Clerk of Court is DIRECTED to review Plaintiff's Motion to Proceed In Forma

Pauperis (Doc. 4) so that a filing fee may be assessed.

IT IS SO ORDERED. os .

Digitally signed

by Judge

DATED: A t 14, 2026

ugus Judge

Date:

Du Qa) 2026.08.14

06:32:53 -05'00'

DAVID W. DUGAN

United States District Judge