Smith v. Macon County Auditor's Office et al

Filing 33

CASE MANAGEMENT ORDER - Entered by Judge Harold A. Baker on 11/14/2014. The plaintiff's motion for leave to file a fourth amended complaint is granted. 31 The amended complaint is dismissed for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. Proc. 12(b)(6) and 28 U.S.C. Section 1915A. This case is closed. This dismissal shall count as one of the plaintiff's three allotted strikes pursuant to 28 U.S.C. Section 1915(g). The clerk of the court is dir ected to record the plaintiffs strike in the three-strike log.The plaintiff must still pay the full docketing fee of $350 even though his case has been dismissed. The agency having custody of the plaintiff shall continue to make monthly payment s to the Clerk of Court, as directed in the Court's prior order.If the plaintiff wishes to appeal this dismissal, he may file a notice of appeal with this court within 30 days of the entry of judgment. Fed. R. App. P. 4(a). A motion for leave to appeal in forma pauperis MUST set forth the issues the plaintiff plans to present on appeal. See Fed. R. App. P. 24(a)(1)(C). If the plaintiff does choose to appeal, he will be liable for the $505 appellate filing fee irrespective of the outcome of the appeal.(LN, ilcd)

E-FILED

Friday, 14 November, 2014 04:35:57 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
ADAM C. SMITH,
Plaintiff,
vs.
MACON COUNTY AUDITOR’S
OFFICE, et.al.,
Defendants.

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14-2177

CASE MANAGEMENT ORDER
This cause is before the court for case management and consideration of the
plaintiff’s motion for leave to file his fourth amended complaint. The plaintiff filed an
original complaint pursuant to 42 U.S.C.§1983, but immediately filed a motion to amend
his complaint. The motion was granted, but the court dismissed the amended complaint
after review pursuant to 28 U.S.C. §1915A.
First, the plaintiff has not identified proper defendants. For instance, the plaintiff
sued jail which is a building and not an individual amenable to suit. The plaintiff listed
government entities, but had not articulated any official capacity claim. He also named
judges and prosecutors as defendants, but they were entitled to absolute immunity from
the articulated claims. Second, the plaintiff had not clearly stated how any of the named
defendants were responsible for his claims. Third, the plaintiff was attempting to bring
unrelated claims against different defendants in the same lawsuit. Therefore, the
plaintiff’s second amended complaint was dismissed as a violation of Rules 18 and 20 of
the Federal Rules of Civil Procedure. The plaintiff was allowed one opportunity to amend
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his complaint. See September 19, 2014 Merit Review Opinion. The plaintiff was
admonished if he continued to file unrelated claims against different defendants, the court
would consider the claims in the order they were presented. “For instance, if the first
allegation fails to state a claim for which relief can be granted and is unrelated to all other
claims, the entire lawsuit will be dismissed.” September 19, 2014 Merit Review Opinion,
p. 2.
The plaintiff responded by filing a confusing array of documents including two
motions for an extension of time and two motions for leave to file a third amended
complaint. The court denied the motions, allowed the plaintiff additional time to file an
amended complaint and provided the plaintiff with another copy of it’s September 19,
2014 Merit Review Order.
The plaintiff has now filed his motion for leave to file his fourth and final amended
complaint.[31]. The motion is granted. [31] The court is still required by 28 U.S.C.
§1915A to “screen” the plaintiff’s complaint, and through such process to identify and
dismiss any legally insufficient claim, or the entire action if warranted. 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.” 28 U.S.C. §1915A.
The plaintiff has ignored the court’s previous order and has again named the
Macon County Jail and the Sheriff’s Department as defendants. The court will dismiss
both. The plaintiff has also identified other defendants including Correctional Officer

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Corey Malone, Sergeant Reynolds, Lieutenant Antonio Brown and Sheriff Thomas
Schneider.
The plaintiff says on July 25, 2012, he noticed mail was missing from his property
box. Since the plaintiff claims officers are the only ones who have direct access to his
box, he assumed an officer stole his mail. The plaintiff spoke to Defendant Reynolds
who said he would investigate, but also told the plaintiff officers have a right to go
through an inmate’s mail.
The plaintiff then sent many complaints to Defendant Brown, but the officer never
came to speak with the plaintiff. Later that same day, Officer Malonie told the plaintiff
to come out of his cell for a shakedown. The plaintiff refused unless Lieutenant Brown
first came to speak with him. After another request for plaintiff to exit his cell, the
plaintiff admits he told the officer he was going to sit in his cell and refuse to move until
Brown appeared. Officer Malonie threatened to use a taser if the plaintiff did not follow
his command to exit his cell, but the plaintiff still refused. The plaintiff says Officer
Malonie then used the taser against him. The plaintiff was then handcuffed and escorted
out of his cell. The plaintiff says his constitutional rights were violated because he was
not physically aggressive with the officer when he used the taser.
The plaintiff is mistaken. The plaintiff does not have a constitutional right, nor
any right, to demand to see a higher ranking officer, nor does he have the right to refuse a
command to come out of his cell. Defendant Malonie warned the plaintiff he would use a
taser if the plaintiff did not comply with his commands, but the plaintiff still refused. The
Seventh Circuit has recognized that “[i]nmates cannot be permitted to decide which
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orders they will obey, and when they will obey them.” Soto v Dickey, 744 F.2d 1260,
1270 (7th Cir. 1984). When an inmate repeatedly refuses to follow an order, there are
limited options available to correctional officers and “some means must be used to
compel compliance….”Id. The plaintiff has failed to state a claim upon which relief can
be granted.
The plaintiff next alleges from January 10, 2014 through September 9, 2014, he
was forced to live in a one man cell with another inmate. The plaintiff says he sent many
complaints to unidentified individuals, but no one responded. The plaintiff’s second claim
is unrelated to his first allegation against Defendant Malonie. Even if the claims were
related, the plaintiff has not articulated a constitutional violation based on his housing.
Overcrowded conditions, in and of themselves, do not violate the Constitution. In Rhodes
v. Chapman, 452 U.S. 337, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981), the Supreme Court
concluded that the practice of housing two inmates in a cell designed for one does not
amount to the “unnecessary and wanton infliction of pain” that violates the Eighth
Amendment. Id. at 346. See also Hubbard v. Taylor, 538 F.3d 229 (3d Cir.2008) (triplecelling of pretrial detainees in single-man cells was rationally related to managing
overcrowded prison, and requiring detainees to sleep on mattresses on the floor was not a
constitutional violation); Strickler v. Waters, 989 F.2d 1375, 1382 (4th Cir.1993) (double
or triple celling is not per se unconstitutional) (quoting Williams v. Griffin, 952 F.2d 820,
824–25 (4th Cir.1991)); McCree v. Sherrod, 408 F. App'x 990, 992–93 (7th Cir.2011) (a
floor space limitation of approximately 35 square feet per inmate does not by itself

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amount to cruel and unusual punishment). Therefore, the plaintiff’s complaint is
dismissed.
IT IS THEREFORE ORDERED that:
The plaintiff’s motion for leave to file a fourth amended complaint is granted. [31]
1)

The amended complaint is dismissed for failure to state a claim upon which
relief can be granted pursuant to Fed. R. Civ. Proc. 12(b)(6) and 28 U.S.C.
Section 1915A. This case is closed.

2)

This dismissal shall count as one of the plaintiff’s three allotted strikes
pursuant to 28 U.S.C. Section 1915(g). The clerk of the court is directed to
record the plaintiff’s strike in the three-strike log.

3)

The plaintiff must still pay the full docketing fee of $350 even though his
case has been dismissed. The agency having custody of the plaintiff shall
continue to make monthly payments to the Clerk of Court, as directed in the
Court's prior order.

4)

If the plaintiff wishes to appeal this dismissal, he may file a notice of appeal
with this court within 30 days of the entry of judgment. Fed. R. App. P.
4(a). A motion for leave to appeal in forma pauperis MUST set forth the
issues the plaintiff plans to present on appeal. See Fed. R. App. P.

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24(a)(1)(C). If the plaintiff does choose to appeal, he will be liable for the
$505 appellate filing fee irrespective of the outcome of the appeal.
Entered this 14th day of November, 2014.

/s/Harold A. Baker
____________________________________
HAROLD A. BAKER
United States District Judge

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