Tamayo v. Kankakee County Jail et al
MERIT REVIEW OPINION #2 Entered by Judge Harold A. Baker on 9/14/2017. See written Order. Plaintiffs motion to amend complaint (#14) is granted. Clerk is directed to docket the amended complaint attached to plaintiffs motion. The clerk is directe d to enter the standard qualified protective order pursuant to the Health Insurance Portability and Accountability Act. The clerk is directed to terminate Defendants Kankakee County Jail, Brown, and Sheriff Dept. The clerk is directed to attempt service on the remaining defendants pursuant to the standard procedures.Plaintiffs motion (#4) is denied with leave to renew.(ED, ilcd)
Thursday, 14 September, 2017 03:14:21 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
KANKAKEE COUNTY JAIL, et al.
MERIT REVIEW ORDER #2
This case is before the court for a merit review of the plaintiff's
amended 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.
In reviewing the amended complaint, the Court accepts the
factual allegations as true, liberally construing them in the
plaintiff’s favor. Turley v. Rednour, 729 F.3d 645, 649 (7th Cir.
2013). However, conclusory statements and labels are insufficient.
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)(citation omitted).
Plaintiff alleges that while she was a pretrial detainee at
Kankakee County Jail, jail officials isolated her for 24 hours a day
while denying religious services and diets, showers, access to the
law library, and protection from other inmates who threatened to
sexually assault her. Plaintiff also alleges that a prison guard
sexually assaulted her. Plaintiff alleges this occurred over the
course of two years.
Plaintiff states a Fourteenth Amendment conditions-ofconfinement claim against defendants Grant, Martin, and
Kolitwenzie, the correctional officers presumably responsible for the
conditions she allegedly endured. See Budd v. Motley, 711 F.3d
840, 842 (7th Cir. 2013) (To state a conditions-of-confinement claim,
Plaintiff must allege that he suffered a sufficiently serious
deprivation and that jail officials were deliberately indifferent to a
serious risk of harm); Gray v. Hardy, 826 F.3d 1000, 1005 (7th Cir.
2016) (an adverse condition of confinement, if endured over a
significant time, can become an constitutional violation even if it
would not be impermissible if it were only a short-term problem).
Plaintiff also states a First Amendment claim for the denial of
religious accommodation. See Grayson v. Schuler, 666 F.3d 450
(7th Cir. 2012).
Plaintiff cannot sue other inmates as § 1983 applies only to
state actors, nor can she sue the Kankakee County Jail or Sheriff’s
Department as they are not “persons” under the statute. See Powell
v. Cook County Jail, 814 F. Supp. 757, 758 (N.D. Ill. 1993) (holding
the Cook County Jail was not a person under Section 1983).
Therefore, these defendants will be dismissed.
IT IS THEREFORE ORDERED:
1) Plaintiff’s motion to amend complaint (#14) is granted. Clerk
is directed to docket the amended complaint attached to
2) Pursuant to its merit review of the amended complaint under
28 U.S.C. § 1915A, the court finds that the plaintiff states a
Fourteenth Amendment claim for inhumane conditions of
confinement and a First Amendment claim for the denial of
religious accommodation against Defendants Grant, Martin,
and Kolitwenzie. All remaining Defendants are dismissed.
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.
3) This case is now in the process of service. The plaintiff is
advised to wait until counsel has appeared for the defendants
before filing any motions, in order to give the 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. The
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 the defendants by mailing
each defendant a waiver of service. The defendants have 60
days from the date the waiver is sent to file an answer. If the
defendants have not filed answers or appeared through
counsel within 90 days of the entry of this order, the plaintiff
may file a motion requesting the status of service. After the
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 the 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
6) The 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 the defendants'
positions. The court does not rule on the merits of those
positions unless and until a motion is filed by the defendants.
Therefore, no response to the answer is necessary or will be
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 the plaintiff with the clerk. The plaintiff does
not need to mail to defense counsel copies of motions and
other papers that the 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. The 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
8) Counsel for the defendants is hereby granted leave to depose
the plaintiff at his place of confinement. Counsel for the
defendants shall arrange the time for the deposition.
9) The plaintiff shall immediately notify the court, in writing, of
any change in his mailing address and telephone number.
The 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.
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. Marshals 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).
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 Kankakee
County Jail, Brown, and Sheriff Dept.
The clerk is directed to attempt service on the remaining
defendants pursuant to the standard procedures.
Plaintiff filed a Motion to Request Counsel (#4). Plaintiff
has no constitutional or statutory right to counsel in this case.
In considering the Plaintiff’s motion, the court asks: (1) has
the indigent Plaintiff made a reasonable attempt to obtain
counsel or been effectively precluded from doing so; and if so,
(2) given the difficulty of the case, does the plaintiff appear
competent to litigate it himself? Pruitt v. Mote, 503 F.3d 647,
654-55 (7th Cir. 2007). Though she states she wrote several
attorneys, Plaintiff has not shown that she made a reasonable
effort to obtain counsel on his own. A plaintiff usually does
this by attaching copies of letters sent to attorneys seeking
representation and copies of any responses received. Because
Plaintiff has not satisfied the first prong, the Court does not
address the second. Plaintiff’s motion (#4) is denied with leave
Entered this 14th day of September, 2017.
/s/Harold A. Baker
HAROLD A. BAKER
UNITED STATES DISTRICT JUDGE
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