Foster v. Barr et al

Filing 9

MERIT REVIEW OPINION: The City of Springfield is dismissed. Sangamon County is added as a Defendant. The clerk is directed to terminate the City of Springfield and to add Sangamon County as a Defendant. The clerk is directed to enter the standard order granting Plaintiff's in forma pauperis petition and assessing an initial partial filing fee, if not already done, and to attempt service on Defendants pursuant to the standard procedures. The Clerk is directed to enter the standard qualified protective order pursuant to the Health Insurance Portability and Accountability Act. Rule 16 Deadline 3/27/2017. (SEE WRITTEN OPINION.) Entered by Judge Sue E. Myerscough on 1/24/2017. (GL, ilcd)

E-FILED

Tuesday, 24 January, 2017 12:11:03 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SHONE FOSTER,
Plaintiff,
v.
CITY OF SPRINGFIELD, IL,
Defendants.

)
)
)
)
)
)
)

16-CV-3315

MERIT REVIEW OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
Plaintiff filed this case from the Sangamon County Jail. He has
since been released, but the Court must still conduct a merit review
of his complaint pursuant to 28 U.S.C. § 1915A. This section
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
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

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). 

Page 1 of 7 

relief that is plausible on its face.'" Alexander v. U.S., 721 F.3d
418, 422 (7th Cir. 2013)(quoted cite omitted).
Plaintiff alleges that systemic overcrowding at the Sangamon
County Jail has caused inhumane conditions at the Jail. The
conditions include but are not limited to: three men to a cell
intended for one; sleeping on the floor where Plaintiff was stepped
on and urine splashed on him from the toilet; infectious maggots
that bite; black mold; “bio-gases” released from the plumbing; no
ventilation in the showers; fungus in the showers; lack of
recreation/exercise opportunities; exposure to staph and other
infectious bacteria; inadequate medical treatment; an unreliable
grievance system; and the lack of an adequate legal library. He
alleges that the totality of these conditions violates his
constitutional right to humane treatment.
No constitutional right exists to an effective grievance system.
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.”) Additionally, the
lack of an adequate legal library is not actionable unless Plaintiff
was hampered from pursuing a nonfrivolous claim, which he does
Page 2 of 7 

not allege. In re Maxy, 674 F.3d 658, (7th Cir. 2012)( to state an
access claim, a prisoner "must allege that some action by the prison
has frustrated or is impeding an attempt to bring a nonfrivolous
legal claim.")
However, the remainder of Plaintiff’s allegations state a
plausible claim that the conditions of the Jail violate constitutional
standards. A plausible inference arises that the Sheriff and the Jail
administrators were aware of and had the authority to address
these conditions. Plaintiff does not explain how the other individual
officers were personally responsible for those conditions or how they
had the authority to improve those conditions. At this point the
case will proceed against all named Defendants, but Defendants
may file a motion to dismiss to flesh out the allegations against
them. Sangamon County will be substituted for the City of
Springfield, since the allegations involve the Sangamon County Jail.
IT IS THEREFORE ORDERED:
1)

Pursuant to its merit review of the Complaint under 28

U.S.C. § 1915A, the Court finds that Plaintiff states a constitutional
claim for inhumane conditions at the Sangamon County Jail.
case proceeds solely on the claims identified in this paragraph.
Page 3 of 7 

This

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.
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
the date the waiver is sent 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
Page 4 of 7 

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 or a motion to dismiss

within 60 days of the date the waiver is sent by the Clerk. 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
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)

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 Plaintiff with the Clerk. Plaintiff does not need to mail to
Defense counsel copies of motions and other papers that Plaintiff
has filed with the Clerk. However, this does not apply to discovery
Page 5 of 7 

requests and responses. Discovery requests and responses are not
filed with the Clerk. 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 more detail.
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)

If a Defendants 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.
Marshal's service on that Defendant and will require that Defendant
Page 6 of 7 

to pay the full costs of formal service pursuant to Federal Rule of
Civil Procedure 4(d)(2).
10)

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.
11)

The City of Springfield is dismissed.

12)

Sangamon County is added as a Defendant.

13)

The clerk is directed to terminate the City of

Springfield and to add Sangamon County as a Defendant.
14)

The clerk is directed to enter the standard order

granting Plaintiff's in forma pauperis petition and assessing an
initial partial filing fee, if not already done, and to attempt
service on Defendants pursuant to the standard procedures.
15)

The Clerk is directed to enter the standard qualified

protective order pursuant to the Health Insurance Portability
and Accountability Act.
ENTERED: January 24, 2017
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
Page 7 of 7