Jones v. Baldwin et al

Filing 7

MERIT REVIEW OPINION entered by Chief Judge James E. Shadid on 06/24/2016. IT IS THEREFORE ORDERED: (1) Plaintiff's motion for the Court to try to find pro bono counsel to represent him is denied (5), with leave to renew after Plaintiff demonstr ates that he has made reasonable efforts to find counsel on his own. Pruitt v. Mote, 503 F.3d 647, 654-55 (7th Cir. 2007). This typically requires writing to several lawyers and attaching the responses. Plaintiff asserts that he has written law firms , but he does not say when or attach any responses. If Plaintiff renews his motion, he should set forth how far he hasgone in school, any jobs he has held inside and outside of prison, any classes he has taken in prison, and any prior litigation expe rience he has. (2) Pursuant to its merit review of the Complaint under 28 U.S.C. § 1915A, the Court dismisses Plaintiff's complaint, without prejudice, for failure to state a claim. (3) Plaintiff may file an amended complaint by July 18, 20 16. (4) If Plaintiff does not file an amended complaint or Plaintiff's amended complaint still fails to state a claim, then this action will be dismissed for failure to state a claim and a strike will be assessed against Plaintiff pursuant to 28 U.S.C. 1915(g). If Plaintiff files an amended complaint, the amended complaint will replace the original complaint. Piecemeal amendments are notpermitted. See full written Order. (JS, ilcd)

E-FILED

Friday, 24 June, 2016 09:42:39 AM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
KEDRON JONES JR.,
Plaintiff,
v.
JOHN R. BALDWIN, IDOC
DIRECTOR, et al.,
Defendants.

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16-CV-3143

MERIT REVIEW OPINION
JAMES E. SHADID, U.S. District Judge.
Plaintiff proceeds pro se from his incarceration in Western
Illinois Correctional Center. He has paid the filing fee in full, but
the Court still must review his complaint under 28 U.S.C. § 1915A
since he is a prisoner suing a government officer. Section 1915A
requires the Court to identify cognizable claims stated by the
Complaint or dismiss claims that are not cognizable.1 In reviewing
the complaint, the Court accepts the factual allegations as true,
liberally construing them in Plaintiff's favor and taking Plaintiff’s

1

 A prisoner  who has had three prior actions dismissed for failure to state a claim or as frivolous or malicious can 
no longer proceed in forma pauperis unless the prisoner is under “imminent danger of serious physical injury.”  28 
U.S.C. § 1915(g). 

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pro se status into account. 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)(quoted cite omitted).
Allegations
Plaintiff alleges that the conditions at Western Illinois
Correctional Center amount to cruel and unusual punishment
because the toilets in the cells flush into the toilets in adjoining
cells instead of down the sewer pipe. Plaintiff alleges that other
inmate’s waste from the adjoining cell splashes up into Plaintiff’s
toilet, which Plaintiff believes presents a serious health hazard.
Plaintiff alleges that he has boils on his skin which he believes were
caused by his exposure to other inmates’ waste while sitting on his
own toilet. Plaintiff alleges that the smell from the toilet makes him
sick and that he is not given sufficient cleaning supplies to try to
disinfect the area.
A prison maintenance worker has allegedly told Plaintiff that
the toilets are designed this way. A grievance officer’s response
states, “Maintenance Dept. states that there is nothing wrong with
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the toilets, it is the way the plumbing was designed when the
buildings were built.” (Complaint, p. 34.) The Warden’s response
to Plaintiff’s letter states that the Chief Engineer “personally
conducted a test on your plumbing between your cells and
determined that the plumbing for your living cell was functioning
properly.” (Complaint, p. 32.)
Analysis
The Eighth Amendment prohibits deliberate indifference to
inhumane conditions of confinement in prison. Inhumane
conditions of confinement are “objectively serious deprivations,”
deprivations which deprive an inmate of the “minimal civilized
measure of life’s necessities” according to “evolving standards of
decency.” Rhodes v. Chapman, 452 U.S. 337, 346 (1981). The
deprivations must be “extreme.” Hudson v. McMillian, 503 U.S. 1,
9 (1992)(“extreme deprivations are required to make out a
conditions-of-confinement claim. Because routine discomfort is
‘part of the penalty that criminal offenders pay for the offenses
against society . . . .’”)(quoting Rhodes, 452 U.S. at 347). Deliberate
indifference is a state of mind akin to criminal recklessness—
“‘actual knowledge of impending harm easily preventable.’” Delaney
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v. DeTella, 256 F.3d 679, 683 (7th Cir. 2001)(quoting Jackson v.
Duckworth, 955 F.2d 21, 22 (7th Cir. 1992)(other quoted cite
omitted)(emphasis in Jackson).
The Court is having difficulty understanding what Plaintiff is
describing or how the condition amounts to the kind of extreme
deprivation actionable under the Eight Amendment. If waste
flushes only into nearby toilets, then eventually all the toilets would
overflow and continue to overflow into the cells. Plaintiff does not
allege that his toilet is stopped up or overflowing or even that his
own toilet does not flush. If the waste in Plaintiff’s toilet disappears
when Plaintiff flushes his own toilet, then Plaintiff can control the
situation by flushing his toilet.
Plaintiff’s allegations about contracting boils or a urinary tract
infection from waste in the toilet are speculative. Plaintiff would
need to be sitting far down in the toilet to have his skin touch the
toilet water. The possibility of an inmate in an adjoining cell
flushing right at the same moment Plaintiff is sitting on his toilet
would, at most, be an isolated occurrence. Further, the smell of
waste in a toilet is not a serious enough deprivation to give rise to a
constitutional claim. See, e.g., Barbosa v. McCann, 2011 WL
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4062469 (N.D. Ill. 2011)(timer that allowed flushing only once every
fifteen minutes did not violate Constitution)(“However unpleasant it
may be to be confined in a small space with a full toilet for several
minutes, Plaintiff has not satisfied the court that the flush timer is
actionable.”)
The Court is also having difficulty discerning a plausible
inference of deliberate indifference. If Defendants looked into the
matter and could not objectively confirm Plaintiff’s description, as it
appears from Plaintiff’s allegations and his attachments, that would
not be deliberate indifference. No plausible inference arises from
these allegations that Defendants actually know of an “impending
harm easily preventable.”
At this point the Court cannot discern a constitutional action
based on the present allegations, but Plaintiff will be given an
opportunity to amend his complaint.
IT IS THEREFORE ORDERED:

(1) Plaintiff’s motion for the Court to try to find pro bono
counsel to represent him is denied (5), with leave to renew after
Plaintiff demonstrates that he has made reasonable efforts to find
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counsel on his own. Pruitt v. Mote, 503 F.3d 647, 654-55 (7th Cir.
2007). This typically requires writing to several lawyers and
attaching the responses. Plaintiff asserts that he has written law
firms, but he does not say when or attach any responses. If
Plaintiff renews his motion, he should set forth how far he has
gone in school, any jobs he has held inside and outside of prison,
any classes he has taken in prison, and any prior litigation
experience he has.
(2) Pursuant to its merit review of the Complaint under 28
U.S.C. § 1915A, the Court dismisses Plaintiff’s complaint, without
prejudice, for failure to state a claim.
(3) Plaintiff may file an amended complaint by July 18, 2016.
(4) If Plaintiff does not file an amended complaint or Plaintiff’s
amended complaint still fails to state a claim, then this action will
be dismissed for failure to state a claim and a strike will be
assessed against Plaintiff pursuant to 28 U.S.C. 1915(g). If
Plaintiff files an amended complaint, the amended complaint will
replace the original complaint. Piecemeal amendments are not
permitted.
ENTERED: 06/24/2016
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FOR THE COURT:
s/James E. Shadid
JAMES E. SHADID
UNITED STATES DISTRICT JUDGE

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