Scott v. Godinez et al

Filing 10

MERIT REVIEW OPINION: Rule 16 Deadline 9/12/2016. SEE FULL WRITTEN ORDER. Entered by Chief Judge James E. Shadid on 7/14/16. (FDT, ilcd)

E-FILED

Thursday, 14 July, 2016 01:24:06 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
MARK SCOTT,
Plaintiff,
v.
SALVADOR GODINEZ, et al.,
Defendants.

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16-CV-1145

MERIT REVIEW OPINION
JAMES E. SHADID, U.S. District Judge.
Plaintiff proceeds pro se from his incarceration in Pontiac
Correctional Center. His Complaint is before the Court for a merit
review pursuant to 28 U.S.C. § 1915A. This section requires the
Court to identify cognizable claims stated by the Complaint or
dismiss claims that are not cognizable.1 In reviewing the complaint,
the Court accepts the factual allegations as true, liberally
construing them in Plaintiff's favor and taking Plaintiff’s pro se
status into account. Turley v. Rednour, 729 F.3d 645, 649 (7th Cir.
2013). However, conclusory statements and labels are insufficient.

1

 A prisoner  who has had three prior actions dismissed for failure to state a claim or as frivolous or malicious can 
no longer proceed in forma pauperis unless the prisoner is under “imminent danger of serious physical injury.”  28 
U.S.C. § 1915(g). 

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Enough facts must be provided to "'state a claim for relief that is
plausible on its face.'" Alexander v. U.S., 721 F.3d 418, 422 (7th
Cir. 2013)(quoted cite omitted).
ALLEGATIONS
Plaintiff alleges that he was transferred from Stateville
Correctional Center to Pontiac Correctional Center in November
2012, where he remains in “administrative segregation” without a
hearing and in retaliation for his grievances.
Plaintiff has had two hearings during this time, but he seems
to allege that the hearings were farces to justify continuing
Plaintiff’s segregation. The first hearing was on October 7, 2013, on
a disciplinary ticket written by Defendant Punke accusing Plaintiff
of disobeying and intimidation. Plaintiff allegedly was either unable
or not allowed to call witnesses who would have (liberally
construed) exonerated him. Plaintiff had another hearing in or
around May 2014 regarding accusations that he had authored gang
letters. Plaintiff’s request for a copy of those letters so that he could
defend himself was denied, and he was found guilty.
Plaintiff also alleges that his conditions of confinement in
segregation are inhumane. Mail delivery is delayed, and the
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exhaust system fails to remove the chemical spray that is frequently
released by officers to quell inmates, causing Plaintiff’s “skin to
burn, forcing him to cry, cough and sneeze, with no medical
assistance.” (Compl. p. 6.) This chemical spray, smells of sewage,
noise, and mildew travel through the vents, and mold and mildew
are allegedly ubiquitous. Outside recreation is in a one-man cage,
which is allegedly often filled with other inmates’ urine and feces.
In the winter, Plaintiff must stand in 2-3 feet of snow without boots
in the recreation cage, and in the summer Plaintiff is often
dehydrated because no water is provided in the cage. The many
mentally ill inmates housed on Plaintiff’s unit frequently throw feces
and urine, do not clean themselves, and constantly scream and
bang. Plaintiff allegedly cannot sleep or think clearly, stuffing
tissue into his ears if he wants to read or write. Showers are
allegedly covered with soap scum, hair, dirt, fungus, and standing
water in the shower attracts insects. (Compl. p. 7.)
ANALYSIS
Extended placement in segregation without procedural due
process violates the Fourteenth Amendment. Kevin v. Barnes, 787
F.3d 833, 836 (7th Cir. 2015)(segregation of less than six months
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could trigger procedural due process protections depending on the
circumstances); Toston v. Thurmer, 689 F.3d 828, 832 (7th
Cir.2012) (remanding where district court made no findings about
whether 90–day segregation term deprived prisoner of protected
liberty interest). Liberally construing Plaintiff’s complaint, he has
been in segregation for about 3 ½ years with no procedural due
process. The two disciplinary hearings Plaintiff did have were
allegedly defective because Plaintiff was unable to call witnesses in
the first hearing and was not allowed to see the purported gang
letters in the second hearing. The Court cannot rule out a possible
procedural due process claim at this point. Part of this claim might
be barred by the two-year statute of limitations or by Heck v.
Humphrey, 512 U.S. 477, 487 (1994)(challenges to the revocation of
good time belong in a habeas action), but those determinations
would be premature. A possible retaliation claim is also stated,
based on Plaintiff’s allegation that his continued segregation is in
retaliation for his grievances.
Plaintiff also states a possible Eighth Amendment claim for
inhumane conditions of confinement. Some of the alleged
conditions, such as the delay in mail delivery, do not suggest
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constitutional violations, but other alleged conditions, such as the
conditions in the recreation cage, shower, insects, mold, and
ventilation system, might rise to the level of objectively serious
deprivations. See Gray v. Hardy, --- F.3d ---, 2016 WL 3457647 * 3
(7th Cir. 2016)(lack of “rudimentary sanitation” can violate Eighth
Amendment)(citing Lewis v. Lane, 816 F.2d 1165, 1171 (7th Cir.
1987)(prisons must provide adequate ventilation and sanitation).
However, Defendant Godinez, the former Director of the Illinois
Department of Corrections, will be dismissed without prejudice. No
plausible inference arises from the present allegations that
Defendant Godinez knew of, approved of, or turned a blind eye to
Plaintiff’s alleged segregation without due process or the alleged
conditions in segregation. See Matthews v. City of E. St. Louis, 675
F.3d 703, 708 (7th Cir.2012).
IT IS THEREFORE ORDERED:
1)

Pursuant to its merit review of the Complaint under 28

U.S.C. § 1915A, the Court finds that Plaintiff states the following
constitutional claims: (1) Fourteenth Amendment claim for
prolonged placement in segregation without procedural due process
against Defendants Hardy, Pfister, Trancoso, Punke, and Eilts; (2)
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Eighth Amendment claim for inhumane conditions of confinement
against Defendants Pfister, Trancoso, Punke, and Eilts; (3) and First
Amendment claim for placement in segregation in retaliation for
Plaintiff’s grievances against Defendants Hardy and Pfister. This
case proceeds solely on the claims identified in this paragraph.
Any 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
pursuant to Federal Rule of Civil Procedure 15.
2)

Defendant Godinez is dismissed.

3)

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.
4)

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
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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.
5)

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.
6)

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
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.
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7)

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.
8)

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.
9)

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
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or phone number will result in dismissal of this lawsuit, with
prejudice.
10)

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).
11)

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.
12)

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.
13)

The Clerk is directed to enter the standard qualified

protective order pursuant to the Health Insurance Portability
and Accountability Act.
14)

The clerk is directed to terminate Defendant

Godinez.
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ENTERED:

7/14/2016

FOR THE COURT:
s/James E. Shadid
JAMES E. SHADID
UNITED STATES DISTRICT JUDGE

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