Morris et al v. Moreci et al

Filing 22

MERIT REVIEW OPINION Entered by Chief Judge James E. Shadid on 11/6/13. IT IS THEREFORE ORDERED that Plaintiff Esteban Calderon is dismissed as a party Plaintiff. Defendants Daniel Moreci, Superintendent Thomas, Jail Administrator Thrussell, and Je ff Thomas (Sheriff) are dismissed as party Defendants. Motions to Request Counsel ( 5 , 18 and 19 ) are DENIED. Motion to Amend/Correct Complaint 21 is GRANTED. The Clerk is directed to attempt service on the defendant. SEE WRITTEN OPINION. (mailed to Robert Morris #2009-0037048, Cook County Jail, PO Box 089002, Chicago, IL 60608 and Esteban Calderon #2011-0824257, Cook County Jail, PO Box 089002, Chicago, IL 60608)( Rule 16 Deadline 1/6/2014.) (SKD, ilcd)(SKD, ilcd)

E-FILED

Wednesday, 06 November, 2013 01:58:08 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
URBANA DIVISION
ROBERT MORRIS and
ESTEBAN CALDERON,

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) No.: 13-2079-JES-DGB
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Plaintiffs,
v.

DANIEL MORECI, SERGEANT KIDD,
SUPERINTEDENT THOMAS, JAIL
ADMINISTRATOR THRUSSELL, and
JEFF THOMAS,
Defendants.

MERIT REVIEW OPINION
JAMES E. SHADID, Chief U.S. District Judge:
This cause is before the Court for a merit review, pursuant to 28 U.S.C. § 1915A, of
Plaintiffs Robert Morris and Esteban Calderon’s claims.
I.
MERIT REVIEW UNDER 28 U.S.C. § 1915(A)
Under 28 U.S.C. § 1915(e)(2) and § 1915A, the Court is required to carefully screen a
complaint filed by a plaintiff who seeks to proceed in forma pauperis. The Court must dismiss a
complaint, or a portion thereof, if the plaintiff has raised claims that are legally “frivolous or
malicious,” that fails to state a claim upon which relief may be granted, or that seeks monetary
relief from a defendant who is immune from such relief. Id. The test for determining if an action
is frivolous or without merit is whether the plaintiff can make a rational argument on the law or
facts in support of the claim. Neitzke v. Williams, 490 U.S. 319, 325 (1989). A complaint fails to
state a claim for relief if the complaint does not allege “enough facts to state a claim to relief that

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is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); Ashcroft v.
Iqbal, 556 U.S. 662, 678-79 (2009).
In reviewing the complaint, the Court accepts the factual allegations as true and liberally
construes them in plaintiff’s favor. Turley v. Rednour, 729 F.3d 645, 651 (7th Cir. 2013).
Conclusory statements and labels are insufficient. Fed. R. Civ. P. 8; Schatz v. Republican State
Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012)(holding that, in order to determine if a
complaint states a plausible claim, the court must take non-conclusory, non-speculative facts as
true, draw all reasonable inferences in the pleader’s favor, and isolate and ignore statements that
simply rehash claim elements or offer only legal labels and conclusions). Instead, sufficient 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)(internal quotation omitted).
II.
ANALYSIS
Plaintiffs are pre-trial detainees at Cook County Department of Corrections and are
awaiting trial. Prior to their stay at Cook County, Plaintiffs were held at the Moultrie County
Illinois Detention Center. While they were being detained at the Moultrie County Illinois
Detention Center, Plaintiffs claim that they were strip searched by Moultrie County Sheriff
Thomas and Sergeant Kidd. Plaintiffs state that the search was necessary because a metal object
went missing at the Detention Center, and officials needed to recover the object before it was
used to injure anyone. Plaintiff Morris claims that, during his strip search, Sergeant Kidd placed
his finger inside of Morris’ anus. When he turned around, Morris saw Officer Burdick standing
behind him smiling. Plaintiffs claim that the strip search violated their right to be free from cruel
and unusual punishment.

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Because Plaintiffs were pretrial detainees, their “claim arises under the Fourteenth
Amendment’s Due Process Clause but is governed by the same standards as a claim for violation
of the Eighth Amendment’s prohibition against cruel and unusual punishment.” Smith v.
Sangamon County Sheriff’s Dept., 715 F.3d 188, 191 (7th Cir. 2013); Rosario v. Brawn, 670 F.3d
816, 820-21 (7th Cir. 2012)(“Although the Eighth Amendment applies only to convicted persons,
pretrial detainees . . . are entitled to the same basic protections under the Fourteenth
Amendment’s due process clause, and we apply the same deliberate indifference standard in both
types of cases.”)(internal quotation omitted). “The Eighth Amendment prohibits punishments
which involve the unnecessary and wanton infliction of pain, are grossly disproportionate to the
severity of the crime for which an inmate was imprisoned, or are totally without penological
justification.” Meriwether v. Faulkner, 821 F.2d 408, 415 (7th Cir. 1987)(citing Rhodes v.
Chapman, 452 U.S. 337, 346 (1981); Caldwell v. Miller, 790 F.2d 589, 600 (7th Cir. 1986)). In
evaluating Eighth Amendment claims, courts conduct both an objective and a subjective inquiry.
The objective prong asks whether the alleged deprivation or condition of confinement is
“sufficiently serious” so that “a prison official’s act or omission results in the denial of the
minimal civilized measure of life’s necessities.” Farmer v. Brennan, 511 U.S. 825, 834 (1994)
(quotations omitted). If the conditions complained of pass this threshold, courts then must
determine the prison official’s subjective state of mind; that is, whether “he knows that inmates
face a substantial risk of serious harm and disregards that risk by failing to take reasonable
measures to abate it.” Id. at 847; Johnson v. Phelan, 69 F.3d 144, 149 (7th Cir. 1995).
In the context of bodily searches performed upon those incarcerated in the prison system,
only those searches that are “maliciously motivated, unrelated to institutional security, and hence
‘totally without penological justification’ are considered unconstitutional.” Meriwether, 821 F.2d

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at 418 (quoting Rhodes, 452 U.S. at 346); Calhoun v. DeTella, 319 F.3d 936, 939 (7th Cir. 2003).
In other words, the search must amount to “‘calculated harassment unrelated to prison needs,’”
Meriwether, 821 F.2d at 418 (quoting Hudson v. Palmer, 468 U.S. 517, 530 (1984)), with the
intent to humiliate and inflict psychological pain. Fillmore v. Page, 358 F.3d 496, 505 (7th Cir.
2004)(citing Calhoun, 319 F.3d at 939).
Here, Plaintiffs have not alleged that Defendants engaged in a strip search of the
detainees, including Plaintiffs, in a calculated harassment unrelated to prison needs. Id. On the
contrary, Plaintiffs specifically allege that prison officials were attempting to locate a missing
metal object that could be used as or fashioned into a weapon to cause bodily harm if not located.
Moreover, Plaintiffs have not alleged any external conditions, factors, or actions taken by
Defendants that would indicate that they performed Plaintiffs’ strip search maliciously, with the
intent to humiliate or inflict psychological pain upon them, or without penological interests.
Whitman v. Nesic, 368 F.3d 931, 934 (7th Cir. 2004)(finding a strip search constitutional). Thus,
Plaintiffs’ claim that their strip search in-and-of-itself constituted a constitutional violation is
incorrect and cannot proceed.
However, a distinction exists between Plaintiff Morris and Plaintiff Calderon. Plaintiff
Morris alleges that Sergeant Kidd placed his finger inside of Morris’ anus. Although a body
cavity search may have been necessary under the circumstances, this is not a determination that
the Court can make at this juncture. Jackson v. Gerl, 622 F. Supp. 2d 738, 753-54 (W.D. Wis.
2009)(denying summary judgment because a question of fact existed as to whether the body
cavity search was justified under the circumstances). Accordingly, Plaintiff Morris will be
allowed to proceed on that claim.

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III.
MOTION FOR COUNSEL
Plaintiffs have moved the Court to appoint counsel to represent them, but their motions
for appointment of counsel are denied. As for Plaintiff Calderon, the Court has found that he has
failed to state a claim upon which relief can be granted, and therefore, he does not need counsel.
As for Plaintiff Morris, the Court does not possess the authority to require an attorney to accept
pro bono appointments on civil cases such as this. Pruitt v. Mote, 503 F.3d 647, 653 (7th Cir.
2007). The most that the Court can do is to ask for volunteer counsel. Jackson v. County of
McLean, 953 F.2d 1070, 1071 (7th Cir. 1992)(holding that it is a “fundamental premise that
indigent civil litigants have no constitutional or statutory right to be represented by counsel in
federal court.”).

In determining whether the Court should attempt to find an attorney to

voluntarily take a case, “the question is whether the difficulty of the case—factually and
legally—exceeds the particular plaintiff’s capacity as a layperson to coherently present it to the
judge or jury himself. . . . The question is whether the plaintiff appears competent to litigate his
own claims, given their degree of difficulty, and this includes the tasks that normally attend
litigation: evidence gathering, preparing and responding to motions and other court filings, and
trial.” Pruitt, 503 F.3d at 655 (emphasis in original).

In other words, this inquiry is an

individualized one based upon the record as a whole, the nature of the claims, and the plaintiff’s
ability to pursue his claims through all phases of the case, including discovery and trial. Navejar
v. Iyioloa, 718 F.3d 692, 696 (7th Cir. 2013).
Here, Morris appears to be literate and has filed cogent pleadings with the Court. His
claim is not so novel or complex that he cannot litigate it himself.

Morris has personal

knowledge of the facts supporting his claims and appears cable of cross-examining Defendant
regarding his version of the events. Johnson v. Doughty, 433 F.3d 1001, 1006 (7th Cir. 2006).
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Accordingly, the Court finds that, based upon the current record, Morris appears competent to
litigate this case himself and denies his motions for appointment of counsel.
IV.
MOTION TO AMEND COMPLAINT
Finally, Plaintiff Morris’ motion to amend the Complaint is granted. In the Amended
Complaint, Plaintiff Morris attaches documents that he believes demonstrate that he has
exhausted his administrative remedies. The Court will allow the amendment for that purpose.
IT IS, THEREFORE, ORDERED that:
1.

Pursuant to its merit review of the Complaint under 28 U.S.C. § 1915A, the Court

finds that Plaintiff Morris’ Complaint states a claim against Defendant Sergeant Kidd for cruel
and unusual punishment in violation of his Eighth Amendment rights. Any additional claim(s)
shall not be included in the case except at the Court’s discretion on a motion by a party for good
cause shown or pursuant to Federal Rule of Civil Procedure 15.
2.

Plaintiff Esteban Calderon is dismissed as a party Plaintiff.

3.

Defendants Moreci, Thomas, Thrussell, and Sheriff Thomas are dismissed as

party Defendants.
4.

This case is now in the process of service. Plaintiff is advised to wait until

counsel has appeared for Defendant before filing any motions in order to give Defendant notice
and an opportunity to respond to those motions. Motions filed before Defendant’s 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.
5.

The Court will attempt service on Defendant by mailing him a waiver of service.

Defendant has 60 days from service to file an Answer. If Defendant has not filed an Answer or
appeared through counsel within 90 days of the entry of this order, Plaintiff may file a motion
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requesting the status of service. After Defendant has been served, the Court will enter an order
setting discovery and dispositive motion deadlines.
6.

With respect to a Defendant(s) who no longer works at the address provided by

Plaintiff, the entity for whom that Defendant(s) 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.

Defendant 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 Order. In general, an answer sets forth Defendant’s positions. The Court does not
rule on the merits of those positions unless and until a motion is filed by Defendant. Therefore,
no response to the answer is necessary or will be considered.
8.

Once counsel has appeared for Defendant, Plaintiff need not send copies of his

filings to that Defendant or to that Defendant’s counsel. Instead, the Clerk will file Plaintiff’s
document electronically and send a notice of electronic filing to defense counsel. The notice of
electronic filing shall constitute service on Defendant pursuant to Local Rule 5.3. If electronic
service on Defendant is not available, Plaintiff will be notified and instructed accordingly.
9.

Counsel for Defendant is hereby granted leave to depose Plaintiff at his place of

confinement. Counsel for Defendant shall arrange the time for the deposition.

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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.
IT IS FURTHER ORDERED THAT THE CLERK IS DIRECTED TO:
ATTEMPT

SERVICE

ON

DEFENDANT

PURSUANT

TO

THE

1)

STANDARD

PROCEDURES; 2) SET AN INTERNAL COURT DEADLINE 60 DAYS FROM THE
ENTRY OF THIS ORDER FOR THE COURT TO CHECK ON THE STATUS OF
SERVICE AND ENTER SCHEDULING DEADLINES; 3) DISMISS PLAINTIFF
ESTEBAN CALDERON AS A PARTY PLAINTIFF; 4) DISMISS DEFENDANTS
MORECI,

THOMAS,

THRUSSEL,

AND

SHERIFF

THOMAS

AS

PARTY

DEFENDANTS; 5) SHOW PLAINTIFFS’ THREE MOTIONS FOR APPOINTMENT OF
COUNSEL [D/E’S 5, 18, & 19] AS DENIED; AND 6) SHOW PLAINTIFFS’ MOTION TO
AMEND COMPLAINT [D/E 21] AS GRANTED.
LASTLY, IT IS ORDERED THAT IF A DEFENDANT 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. MARHSAL’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).
Entered this 6th day of November 2013.

_____ /s James E. Shadid_____________________
JAMES E. SHADID
CHIEF UNITED STATES DISTRICT JUDGE
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