Barrett et al v. Illinois Department of Human Services et al

Filing 7

OPINION: The petitions to proceed in forma pauperis for the following Plaintiffs are denied for failure to pay the partial filing fee: Telford, Galba, Lain, Doss, Smith, Vance, Koster, Seidler, Isbell, Diaz, Bice, and Anderson. The clerk is directed to terminate the aforementioned Plaintiffs. The Court finds that the remaining Plaintiffs state a due process claim against Defendants Ashby and Barnett based on the alleged conditions of confinement. Accordingly, the petitions to proceed in forma pauperis filed by the remaining Plaintiffs are granted (d/e 2 ). Defendants Illinois Department of Human Services and Sandra Simpson are dismissed for failure to state a claim against them. The Clerk is directed to attempt service of the Complaint a nd this order on each Defendant pursuant to this District's internal procedures for Rushville cases. This cause is set for further scheduling procedures under Fed. R. Civ. P. 16 on October 29, 2012 at 1:30 p.m. (or as soon as the Court can reach the case) before U. S. District Judge Sue E. Myerscough by video conference. The conference will be cancelled if no service or other issues are pending. SEE WRITTEN OPINION. Entered by Judge Sue E. Myerscough on 9/20/2012. (MJ, ilcd)

E-FILED

Thursday, 20 September, 2012 09:40:37 AM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
DONNIE BARRETT, et al.,

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Plaintiffs,
v.
ILLINOIS DEPARTMENT OF
HUMAN SERVICES, FORREST
ASHBY, REGGY BARNETT, and
SANDRA SIMPSON,
Defendants.

12-CV-3095

OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Twenty-five Plaintiffs, proceeding pro se and currently detained in
the Rushville Treatment and Detention Center, seek leave to proceed in
forma pauperis on their claims challenging the cleanliness of the facility.
Thirteen Plaintiffs will be dismissed for failing to pay the partial filing
fees. This order applies to the petitions to proceed in forma pauperis by
the remaining Plaintiffs.
The “privilege to proceed without posting security for costs and fees
is reserved to the many truly impoverished litigants who, within the
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District Court's sound discretion, would remain without legal remedy if
such privilege were not afforded to them.” Brewster v. North Am. Van
Lines, Inc., 461 F.2d 649, 651 (7th Cir. 1972). Additionally, a court
must dismiss cases proceeding in forma pauperis “at any time” if the
action is frivolous, malicious, or fails to state a claim, even if part of the
filing fee has been paid. 28 U.S.C. § 1915(d)(2). Accordingly, this Court
grants leave to proceed in forma pauperis only if the complaint states a
federal claim.
LEGAL STANDARD
To state a claim, the allegations must set forth a “short and plain
statement of the claim showing that the pleader is entitled to relief .”
Fed. R. Civ. P. 8(a)(2). Factual allegations must give enough detail to
give “‘fair notice of what the . . . claim is and the grounds upon which it
rests.’” EEOC v. Concentra Health Serv., Inc., 496 F.3d 773, 776 (7th
Cir. 2007)(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007))(add’l citation omitted). The factual “allegations must plausibly
suggest that the plaintiff has a right to relief, raising that possibility above
a ‘speculative level.’” Id. (quoting Bell Atlantic, 550 U.S. at 555). “A
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claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged . . . . Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements,
do not suffice.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)(citing
Bell Atlantic, 550 U.S. at 555-56). However, pro se pleadings are
liberally construed when applying this standard. Bridges v. Gilbert, 557
F.3d 541, 546 (7th Cir. 2009).
ANALYSIS
Plaintiffs allege that Defendant Barnett, the laundry supervisor,
fails to properly train and supervise the residents working on laundry
detail. Barnett allegedly allows and encourages overloading of the
washers and permits caustic and unlabeled chemicals to be used for
washing the laundry. The result, Plaintiffs allege, is that Plaintiffs are
“forced to wear dirty clothes that cause[] sickness, rashes, health issues, .
. . .” (Complaint, ¶ 7, d/e 1.) Clothes are returned “soiled” and
“smelling” and sometimes containing food and other objects.
Plaintiffs also allege that the showers are mold-infested, the
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hallways have an “overall filthy hue to them,” the dietary department
“harbors mold and the smell of sewage or decay and rot,” and the facility
lacks sufficient air circulation and natural light. (Complaint, ¶¶ 8-15, d/e
1). Access to adequate cleaning materials is lacking. Lastly, Plaintiffs
allege that Defendants “foster an atmosphere of retaliation” for
complaining about these conditions.
ANALYSIS
Plaintiffs are constitutionally entitled to humane conditions of
confinement, including adequate sanitation and ventilation. Sain v.
Wood, 512 F.3d 886 (7th Cir. 2008)(committed person entitled to
"humane conditions" and the provision of "adequate food, clothing,
shelter, and medical care"). At this early stage, the Court cannot rule out
a constitutional claim based on the totality of conditions alleged by
Plaintiffs. Personal responsibility is plausibly inferred at this stage
against Defendants Barnett, the laundry supervisor, and Defendant
Ashby, the facility’s director.
However, Plaintiffs cannot sue the facility itself, because the facility
is not an entity subject to suit under 42 U.S.C. § 1983. Additionally, no
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inference of personal responsibility arises against Defendant Simpson, the
grievance examiner, for the conditions of the facility. Simpson cannot be
liable for incorrectly handling Plaintiffs’ grievances. See Antonelli v.
Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996)(“a state’s inmate grievance
procedures do not give rise to a liberty interest protected by the Due
Process Clause.”).
Plaintiffs’ allegations that Simpson retaliates against them for their
grievances are too vague to state a claim. The only adverse action alleged
is that Simpson contacts the residents who work in the laundry or the
administrators about the grievances, which in turn subject Plaintiffs to
angry verbal harassment and threats. Simpson cannot inquire into the
validity of the grievances without making inquiries to those responsible,
and she is not responsible for their alleged misconduct because of those
inquiries. Further, the vague threats alleged do not allow a plausible
inference that Plaintiffs have suffered a sufficiently adverse action to
make out a retaliation claim. Gomez v. Randle, 680 F.3d 859, 866 (7th
Cir. 2012)(deprivation suffered must be adverse enough to deter exercise
of First Amendment rights).
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IT IS THEREFORE ORDERED:
1) The petitions to proceed in forma pauperis for the following
Plaintiffs are denied for failure to pay the partial filing fee: Telford,
Galba, Lain, Doss, Smith, Vance, Koster, Seidler, Isbell, Diaz, Bice, and
Anderson. The clerk is directed to terminate the aforementioned
Plaintiffs.
2) The Court finds that the remaining Plaintiffs state a due process
claim against Defendants Ashby and Barnett based on the alleged
conditions of confinement. Accordingly, the petitions to proceed in
forma pauperis filed by the remaining Plaintiffs are granted (d/e 2). 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) Defendants Illinois Department of Human Services and Sandra
Simpson are dismissed for failure to state a claim against them.
4) The Clerk is directed to attempt service of the Complaint and
this order on each Defendant pursuant to this District's internal
procedures for Rushville cases.
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5) 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 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).
6) 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 that Defendant's current work
address, or, if not known, that Defendant's forwarding address. This
information shall be used only for effecting 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) Defendants shall file an answer within the time prescribed by
Local Rule. 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.

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8) Plaintiffs shall serve upon any Defendant who has been served
but who is not represented by counsel a copy of every filing submitted by
Plaintiffs for consideration by the Court, and shall also file a certificate of
service stating the date on which said copy was mailed. Any paper
received by a District Judge or Magistrate Judge that has not been filed
with the Clerk or that fails to include a required certificate of service will
be stricken by the Court.
9) Once counsel has appeared for a Defendant, Plaintiffs need not
send copies of their filings to that Defendant or to that Defendant's
counsel. Instead, the Clerk will file Plaintiffs’ 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.
10) This cause is set for further scheduling procedures under Fed.
R. Civ. P. 16 on October 29, 2012 at 1:30 p.m. (or as soon as the Court
can reach the case) before U. S. District Judge Sue E. Myerscough by

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video conference. The conference will be cancelled if no service or other
issues are pending. Accordingly, no writ shall issue to secure Plaintiffs’
presence at the conference unless directed by the Court.
11) Counsel for Defendants is hereby granted leave to depose
Plaintiffs at their place of confinement. Counsel for Defendants shall
arrange the time for the depositions.
12) Plaintiffs shall immediately notify the court of any change in
their mailing addresses and telephone numbers. Failure to notify the
Court of a change in mailing address or phone number will result in
dismissal of this lawsuit, with prejudice.

ENTERED: September 20, 2012
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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