Berry v. Bustos et al

Filing 10

MERIT REVIEW entered by Judge Joe Billy McDade on 4/1/2021. IT IS THEREFORE ORDERED: 1. Plaintiff's complaint is dismissed for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) and 28 U.S.C. § 1915A. Plaintiff will have 30 day s from the entry of this order in which to replead his claims. The pleading is to be captioned Amended Complaint and is to include all of Plaintiff's claims without reference to a prior pleading. Failure to file an amended complaint will resu lt in the dismissal of this case, without prejudice, for failure to state a claim. 2. Plaintiff files 4 a motion for recruitment of pro bono counsel but does not indicate that he attempted to secure counsel on his own. Pruitt v. Mote, 503 F.3d 647, 654-55 (7th Cir. 2007). 4 is DENIED at this time. In the event that Plaintiff renews his motion for appointment of counsel, he is to provide copies of the letters sent to, and received from, prospective counsel. SEE FULL WRITTEN ORDER.(SAG)

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E-FILED

Thursday, 01 April, 2021 11:06:54 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
DeWAUN A. BERRY,

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Plaintiff,
v.
SHERIFF JERRY BUSTOS, et al.,
Defendants.

No.: 20-cv-4270-MMM

MERIT REVIEW
Plaintiff, proceeding pro se, filed a complaint in federal Court identifying a negligence
claim against Rock Island County Sheriff Bustos and Rock Island County Jail (“Jail”) medical
staff. The case is before the Court for a merit review pursuant to 28 U.S.C. § 1915A. In
reviewing the Complaint, the Court accepts the factual allegations as true, liberally construing
them in Plaintiff's favor. Turley v. Rednour, 729 F.3d 645, 649-51 (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. United States, 721 F.3d 418, 422 (7th
Cir. 2013)(citation and internal quotation marks omitted). While the pleading standard does not
require “detailed factual allegations”, it requires “more than an unadorned, the-defendantunlawfully-harmed-me accusation.” Wilson v. Ryker, 451 Fed. Appx. 588, 589 (7th Cir. 2011)
quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Plaintiff alleges that on November 23, 2020, he was taken from C Block to segregation.
He also asserts that on that date, inmate Glover who was also housed on C Block, had a
temperature of 108°. Plaintiff does not claim that he and Glover were cellmates and does not
describe any close contact he had with Glover.

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Plaintiff alleges that on November 29, 2020, after inmate Glover tested positive for
coronavirus, Plaintiff was taken back to C Block. On December 5, 2020, Plaintiff tested positive
for coronavirus, something he believes to be the result of his having been returned to C Block
which he describes as “a contaminated pod.” Plaintiff asserts that he contracted the virus due to
the negligence of Defendant Bustos and the healthcare team as they had “the power to stop me
from becoming infect with the virus.” Plaintiff claims that he is at particular risk of suffering
adversely from coronavirus as he has only one kidney. While Plaintiff claims to have lost his
sense of taste and smell, he does not describe any other ill-effects.
ANALYSIS
Although he used a preprinted complaint form and had the opportunity to designate his
claim as having been filed under § 1983, Plaintiff did not do so, identifying his claim as one for
negligence. Allegations of negligence, however, do not reach the level of a constitutional
violation. To establish a constitutional claim Plaintiff, as a pretrial detainee, must successfully
plead that the conditions under which he was held were objectively unreasonable, in violation of
the Fourteenth Amendment. Negligence on the part of an official does not violate the
Constitution, and it is not enough that he or she should have known of a risk.” Pierson v.
Hartley, 391 F.3d 898, 902 (7th Cir. 2004).
As a result, the complaint must be dismissed. Plaintiff will be given an opportunity to
replead, however, in the event that he is able to state a cognizable federal claim.
IT IS THEREFORE ORDERED:
1.

Plaintiff's complaint is dismissed for failure to state a claim pursuant to Fed. R.

Civ. P. 12(b)(6) and 28 U.S.C. § 1915A. Plaintiff will have 30 days from the entry of this order
in which to replead his claims. The pleading is to be captioned Amended Complaint and is to

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include all of Plaintiff’s claims without reference to a prior pleading. Failure to file an amended
complaint will result in the dismissal of this case, without prejudice, for failure to state a claim.
2.

Plaintiff files [4] a motion for recruitment of pro bono counsel but does not

indicate that he attempted to secure counsel on his own. Pruitt v. Mote, 503 F.3d 647, 654-55
(7th Cir. 2007). [4] is DENIED at this time. In the event that Plaintiff renews his motion
for appointment of counsel, he is to provide copies of the letters sent to, and received from,
prospective counsel.

4/1/2021
ENTERED: _________________
s/ Michael M. Mihm
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MICHAEL M. MIHM
UNITED STATES DISTRICT JUDGE
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