Gills v. Watson et al
MERIT REVIEW OPINION entered by Judge Sue E. Myerscough on 4/11/2018. Pursuant to its merit review of the Complaint under 28 U.S.C. § 1915A, the Court finds that the Plaintiff states a plausible Eighth Amendment claim arising from the alleged c ross-flushing toilets at Western Illinois Correctional Center. This case is now in the process of service. Plaintiff's motions for the Court to appoint counsel are denied, d/e's 4 and 5 . HIPAA Order to enter. (SEE WRITTEN OPINION) (MAS, ilcd)
Wednesday, 11 April, 2018 03:54:38 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
WARDEN WATSON and
MERIT REVIEW OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
Plaintiff proceeds pro se from his incarceration in Danville
Correctional Center. His Complaint is before the Court for a merit
review 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.
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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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).
Plaintiff alleges that, during his incarceration in Western
Illinois Correctional Center, he was subjected to faulty plumbing.
In particular, when an inmate in an adjoining cell flushed the toilet
in the adjoining cell, the contents in that toilet would travel into
Plaintiff’s toilet. Defendants allegedly conceded that this “cross
flushing” can occur due to faulty plumbing but apparently disputed
the extent of the problem, which Plaintiff alleges was a daily
On these allegations, the Court cannot rule out a plausible
Eighth Amendment claim for inhumane conditions. The case will
proceed for service.
IT IS THEREFORE ORDERED:
Pursuant to its merit review of the Complaint under 28
U.S.C. § 1915A, the Court finds that Plaintiff states a plausible
Eighth Amendment claim arising from the alleged cross-flushing
toilets at Western Illinois Correctional Center. This case proceeds
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solely on the claims identified in this paragraph. 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.
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.
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.
With respect to a Defendant who no longer works at the
address provided by Plaintiff, the entity for whom that Defendant
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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.
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 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.
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
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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. 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.
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.
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
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.
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Marshal's 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).
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.
Plaintiff’s motions for the Court to appoint counsel
are denied (d/e’s 4, 5). The Court cannot order an attorney to
accept pro bono appointment on a civil case such as this. Pruitt v.
Mote, 503 F.3d 647, 653 (7th Cir. 2007). Plaintiff has made
reasonable efforts to find counsel, so the question is “whether the
difficulty of the case—factually and legally—exceeds the particular
plaintiff's capacity as a layperson to coherently present it to the
judge or jury himself.” Pruitt, 503 F.3d at 655 (7th Cir. 2007). On
this record, Plaintiff appears competent to proceed pro se. His
pleadings adequately convey the factual basis for his claims; he has
litigation experience; and, he has personal knowledge of the crossflushing problem. Plaintiff may renew his motion on a more
developed factual record, setting forth his educational level, any
jobs he has had inside or outside of prison, any classes he has
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taken in prison, and his litigation experience in state and federal
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.
April 11, 2018
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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