Minor v. Bukowski et al

Filing 11

MERIT REVIEW OPINION entered by Chief Judge James E. Shadid on 4/6/2017.IT IS FURTHER ORDERED THAT THE CLERK IS DIRECTED TO: 1) Dismiss Defendants Timothy Bukowski, Chad Kolitwenzew, and Robert Shutlz for failure to state a claim upon which relief c an be granted pursuant to by 28 U.S.C. §1915A; 2) Attempt service on Defendants pursuant to the standard procedures; 3) set an internal court deadline 60 days (Rule 16 Deadline 6/5/2017)from the entry of this order for the court to check on the status of service and enter scheduling deadlines and 4) enter the Court's standard qualified protective order pursuant to the Health Insurance Portability and Accountability Act. See full written Order. (VH, ilcd)

E-FILED

Thursday, 06 April, 2017 04:24:02 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
MARCUS MINOR,
Plaintiff,
vs.
TIMOTHY BUKOWSKI, et al.,
Defendants

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No. 17-2008

MERIT REVIEW ORDER
This cause is before the Court for merit review of the Plaintiff’s complaint. The
Court is 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.
Plaintiff, a pro se prisoner, claims Defendants Sheriff Timothy Bukowski,
Administrator Chad Kolitwenzew, Assistant Administrator Robert Shutlz, Officer
Appell and Officer Long violated his constitutional rights at the Jerome Combs
Detention Center.
Plaintiff says on December 18, 2016, Defendants Appell and Long were handing
out food trays when Plaintiff reached out of his chuckhole to grab his tray and prevent
the food from spilling. However, the Defendants began to beat his arms and repeatedly
slammed the chuckhole door on his arms. The officers then threw Plaintiff’s food into
his cell and again began kicking his arms. Ultimately, the Defendants put one handcuff
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on Plaintiff and the other end of the handcuff on the cell door. Plaintiff claims the
officers left him restrained in this manner for over an hour. Six officers then returned,
un-cuffed the Plaintiff and moved him to a restraint chair where he again remained for
one or two hours. Plaintiff says his arm and finger were swollen. When a nurse
entered the area, Plaintiff explained what happened and asked her to look at his arm,
but Plaintiff says the nurse “just walked off.” (Comp, p. 7).
Plaintiff has not listed any John Doe Defendants, nor has he identified the Nurse
as a Defendant. However, based on the allegations in the complaint, Plaintiff has
adequately alleged Defendants Appell and Long used excessive force against him on
December 18, 2016. Plaintiff has not alleged any other named Defendant was directly
involved in the use of force, and a Defendant cannot be held liable pursuant to §1983
simply because he was a supervisor. See Ali v. West, 2017 WL 176304, at *3 (E.D.Wis. Jan.
17, 2017)(“[b]ecause personal involvement is required for liability to attach, the
respondeat superior doctrine—supervisor liability—is not applicable to Section 1983
actions.”); Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001)(“The doctrine of
respondeat superior does not apply to § 1983 actions..”). In addition, while Plaintiff
claims he is suing some Defendants in their official capacities, he has failed to articulate
an official capacity claim. Therefore, Plaintiff’s excessive force claim is limited to
Defendants Appell and Long.
Plaintiff next alleges on December 19, 2016, Defendant Juergens took away
Plaintiff’s cover and blanket. Therefore, Plaintiff says he was forced to sleep in a very
cold and uncomfortable cell and slept in his shirt. Plaintiff says he has sent grievances
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to Defendants Kolitwenzew, Shultz, and Scloendorf, but they failed to take any action.
Finally, Plaintiff says he only receives showers twice a week, but the “county jail
standards” require three showers a week. (Comp., p. 7).
Prisoners have right to adequate shelter, including a right to protection from
cold. See Dixon v. Godinez, 114 F.3d 640, 642 (7th Cir. 1997). To determine whether an
inmate has alleged a constitutional violation, courts consider “the severity of the cold;
its duration; whether the prisoner has alternative means to protect himself from the
cold; the adequacy of such alternatives; as well as whether he must endure other
uncomfortable conditions as well as cold.” Id. at 644; see also Palmer v. Johnson, 193 F.3d
346 (5th Cir. 1999) (finding that exposure to extreme cold for 17 hours could constitute
Eighth Amendment violation); Henderson v. DeRobertis, 940 F.2d 1055, 1058 (7th Cir.
1991)(finding that deprivation of blankets for four days in sub-freezing temperatures
could constitute Eighth Amendment violation). “However, where an inmate fails to
show that he was forced to remain in the cold for long periods of time, or does not
establish that he suffered unusual deprivations, his complaint may not rise to the level
of a constitutional violation.” Mitchell v. Dennison, 2017 WL 119343, at *2 (S.D.Ill. Jan. 12,
2017); see also Mays v. Springborn, 575 F.3d 643, 648-49 (7th Cir. 2009)(prisoner who had
hurt ears, numb hands, feelings of frostbite, and caught colds because he was never
issued adequate winter clothing showed only that he was subject to the “usual
discomforts of winter,” not the objectively serious harm required to state an Eighth
Amendment claim).

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Plaintiff has alleged nothing more than he was denied a blanket and therefore
slept in his shirt. Based on the slim allegations, Plaintiff has not articulated a
constitutional violation based on the denial of a blanket. In addition, a violation of jail
standards alone does not state a constitutional violation. See Wells v. Bureau Cnty., 723
F.Supp.2d 1061, 1083 (C.D.Ill. July 2, 2010) (observing that § 1983 provides no remedy
for failure to meet Illinois' Jail Standards).
Even if Plaintiff had articulated a claim based on his living conditions, he may
not combine unrelated claims against different Defendants in one lawsuit. See George v
Smith, 507 F.3d 605, 607 (7th Cir. 2007)(“multiple claims against a single party are fine,
but Claim A against Defendant 1 should not be joined with unrelated Claim B against
Defendant 2). Plaintiff claims that officers used excessive force against him is unrelated
to his claim that a different officer took his blanket. Therefore, Plaintiff may only
proceed in this lawsuit with his claim alleging Defendants Appell and Long used
excessive force on December 18, 2016.
IT IS THEREFORE ORDERED that:
1) Pursuant to its merit review of the complaint under 28 U.S.C. § 1915A, the
Court finds the Plaintiff alleges Defendants Appell and Long used excessive
force against him on December 18, 2016. The claim is stated against the
Defendants in their individual capacities only. 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.

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2) 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.
3) The Court will attempt service on Defendants by mailing each Defendant a
waiver of service. Defendants have 60 days from service 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.
4) 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.
5) 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
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pleadings shall be to the issues and claims stated in this Order. 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.
6) Once counsel has appeared for a 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
Defendants pursuant to Local Rule 5.3. If electronic service on Defendants is not
available, Plaintiff will be notified and instructed accordingly.
7) 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.
8) 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.
9) 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.
IT IS FURTHER ORDERED THAT THE CLERK IS DIRECTED TO:
1) Dismiss Defendants Timothy Bukowski, Chad Kolitwenzew, and Robert
Shutlz for failure to state a claim upon which relief can be granted pursuant to
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by 28 U.S.C. §1915A; 2) Attempt service on Defendants pursuant to the
standard procedures; 3) 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 and 4) enter the Court's standard qualified protective order pursuant
to the Health Insurance Portability and Accountability Act.
ENTERED this 6th day of April, 2017.

s/ James E. Shadid
____________________________________________
JAMES E. SHADID
UNITED STATES DISTRICT JUDGE

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