Gaston v. McCoy et al
Filing
10
SECOND MERIT REVIEW OPINION entered by Chief Judge James E. Shadid on 08/06/2016. IT IS THEREFORE ORDERED: Plaintiff's "Motion to Amend" is construed as a motion to file an amended complaint and is granted (9). The clerk is directed to enter the standard order granting Plaintiff's in forma pauperis petition and assessing an initial partial filing fee, if not already done, and to attempt service on Defendants pursuant to the standard procedures.The Clerk is directed to enter the standard qualified protective order pursuant to the Health Insurance Portability and Accountability Act. The Clerk is directed to terminate Defendants Wieland, "Jason," and Canteen, Inc. The Defendants in this case are Michael McCoy, Rob McCoy, and Brian Asbell. See full written Opinion.(JS, ilcd)
E-FILED
Thursday, 06 August, 2015 09:33:47 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
TERREL GASTON,
Plaintiff,
v.
MICHAEL MCCOY,
ROB MCCOY, BRIAN ASBELL,
CANTEEN, INC., JASON, and
RICK WIELAND,
Defendants.
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15-CV-1054
SECOND MERIT REVIEW OPINION
JAMES E. SHADID, U.S. District Judge.
On June 1, 2015, the Court dismissed Plaintiff’s Complaint
without prejudice to Plaintiff filing an amended complaint regarding
his claim that the conditions of the Peoria County Jail were
inhumane during Plaintiff’s eight month detention at the Jail.
Plaintiff has filed an amended complaint, which offers some
more detail about the jail conditions. In particular, Plaintiff alleges
that he was without a change of underwear for three weeks, and he
also appears to be alleging that he had no soap, toothpaste, or
toothbrush during this time. He alleges that the Jail is overrun
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with mold, which caused him to suffer from skin problems,
including eczema. He alleges an unsanitary eating facility—paint
chips and brown water repeatedly dropping from the ceiling and
walls on to the floors and dining tables. He also claims that
Defendants failed to enforce the no-smoking law by failing to
thoroughly search inmates. Plaintiff alleges that he was exposed to
so much marijuana and cigarette smoke from other inmates that he
had difficulty breathing. His allegedly complained to no avail.
At this point, the Court cannot rule out a possible
constitutional claim based on the totality of conditions alleged by
Plaintiff. “Jail officials violate the Eighth Amendment if they are
deliberately indifferent to adverse conditions that deny ‘the minimal
civilized measure of life's necessities,’ including adequate sanitation
and personal hygiene items.” Budd v. Motley, 711 F.3d 840, 842
(7th Cir. 2013)(quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)
(other citations omitted).1 A more developed factual record will
reveal if the deprivations suffered by Plaintiff were objectively
serious in a constitutional sense and whether Defendants were
deliberately indifferent to those conditions.
1
The Fourteenth Amendment is technically the applicable Amendment, since Plaintiff was a pretrial detainee, but
the analysis is the same as under the Eighth Amendment. Budd, 711 F.3d at 842.
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Plaintiff also alleges that the canteen sold unlabeled products,
but that does not state a claim under federal law. This case will
proceed on Plaintiff’s conditions-of-confinement claim only.
IT IS THEREFORE ORDERED:
1) Plaintiff’s “Motion to Amend” is construed as a motion to file
an amended complaint and is granted (9).
2) Pursuant to its merit review of the Complaint under 28
U.S.C. § 1915A, the Court concludes that Plaintiff states an
arguable claim that the conditions of the Peoria County Jail violated
constitutional standards. This claims proceeds against Defendants
Michael McCoy, Rob McCoy, and Brian Asbell.
3) Defendants “Canteen, Inc.,” “Jason,” and Rick Wieland are
dismissed.
4)
This case is now in the process of service. Plaintiff is
advised to wait until counsel has appeared for Defendants before
filing any motions, in order 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 any evidence to the
Court at this time, unless otherwise directed by the Court.
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5)
The Court will attempt service on Defendants by mailing
each Defendant a waiver of service. Defendants have 60 days from
the date the waiver is sent to file an Answer. If Defendants have not
filed Answers or appeared through counsel within 90 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)
With respect to a Defendant who no longer works at the
address provided by Plaintiff, the entity for whom that Defendant
worked while at that address shall provide 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.
7)
Defendants shall file an answer within 60 days of the
date the waiver is sent by the Clerk. 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 Opinion. In general, an
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answer sets forth Defendants' positions. The Court does not rule
on the merits of those positions unless and until a motion is filed by
Defendants. Therefore, no response to the answer is necessary or
will be considered.
8)
This District uses electronic filing, which means that,
after Defense counsel has filed an appearance, Defense counsel will
automatically receive electronic notice of any motion or other paper
filed by Plaintiff with the Clerk. Plaintiff does not need to mail to
Defense counsel copies of motions and other papers that Plaintiff
has filed with the Clerk. However, this does not apply to discovery
requests and responses. Discovery requests and responses are not
filed with the Clerk. 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 Defense counsel has filed an appearance and the
Court has entered a scheduling order, which will explain the
discovery process in more detail.
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9)
Counsel for Defendants is hereby granted leave to depose
Plaintiff at his place of confinement. Counsel for Defendants 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 notify the Court of a change in mailing address
or phone number will result in dismissal of this lawsuit, with
prejudice.
11)
If a Defendants fails to sign and return a waiver of service
to the clerk within 30 days after the waiver is sent, the Court will
take appropriate steps to effect formal service through the U.S.
Marshal's service on that Defendant and will require that Defendant
to pay the full costs of formal service pursuant to Federal Rule of
Civil Procedure 4(d)(2).
12)
Within 10 days of receiving from Defendants' counsel an
authorization to release medical records, Plaintiff is directed to sign
and return the authorization to Defendants' counsel.
13)
The clerk is directed to enter the standard order
granting Plaintiff's in forma pauperis petition and assessing an
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initial partial filing fee, if not already done, and to attempt
service on Defendants pursuant to the standard procedures.
14)
The Clerk is directed to enter the standard qualified
protective order pursuant to the Health Insurance Portability
and Accountability Act.
15)
The Clerk is directed to terminate Defendants
Wieland, “Jason,” and Canteen, Inc. The Defendants in this
case are Michael McCoy, Rob McCoy, and Brian Asbell.
ENTERED:
08/06/2015
FOR THE COURT:
s/James E. Shadid
JAMES E. SHADID
UNITED STATES DISTRICT JUDGE
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