Mackel v. Department of Human Services et al

Filing 8

MERIT REVIEW ORDER Entered by Judge Michael M. Mihm on 11/13/23. IT IS THEREFORE ORDERED: 1) Pursuant to its merit review of the Complaint under 28 U.S.C. § 1915A, Plaintiff's Complaint is DISMISSED WITHOUT PREJUDICE for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) and 28 U.S.C. § 1915A. The Court will allow Plaintiff the opportunity to file an Amended Complaint clarifying his claims within 30 days of this Order. Failure to file anAmended Complaint wil l result in the dismissal of this case, without prejudice, for failure to state a claim. Plaintiff's Amended Complaint will replace Plaintiff's Complaint in its entirety. The Amended Complaint must contain all allegations against all Defend ants. Piecemeal amendments are not accepted. 2) Plaintiff's Motion for Leave to Proceed in forma pauperis 3 is DENIED with leave to reassert if he files an Amended Complaint. 3) Plaintiff's Motion for Status 6 and Motion for Status of Merit Review Order 7 are MOOT. SEE FULL WRITTEN ORDER. (ANW)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
DAVID MACKEL,
Plaintiff,
v.
DEPARTMENT OF HUMAN
SERVICES, et al.,
Defendants.

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Case No. 23-4103

MERIT REVIEW ORDER
Plaintiff, proceeding pro se and civilly detained in the Rushville Treatment and Detention
Center pursuant to the Illinois Sexually Violent Persons Commitment Act, 725 ILCS 207/1,
pursues an action under 42 U.S.C. § 1983 for alleged constitutional violations. (Doc. 1).
Plaintiff seeks leave to proceed in forma pauperis. (Doc. 3). The “privilege to proceed
without posting security for costs and fees is reserved to the many truly impoverished litigants
who, within the 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). 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 will grant leave to proceed in forma pauperis only
if Plaintiff’s Complaint states a federal claim.
This 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

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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-defendant-unlawfullyharmed-me accusation.” Wilson v. Ryker, 451 F. App’x 588, 589 (7th Cir. 2011) (quoting Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009)).
ALLEGATIONS
Plaintiff identifies seven Defendants, including the Department of Human Services,
Program Director Greg Donathan, Assistant Program Director Erin Posey, Security Director
William Epperson, Assistant Security Director Ham, Erik Parsons, and Treatment Team Leader
Paula Lodge.
Plaintiff claims that his roommate, Timothy Bell, sexually assaulted him. Plaintiff does not
state when the assault occurred. Plaintiff filed a lawsuit regarding the assault on February 19, 2021.
See Mackel v. Whitaker, et al., Case No. 21-cv-4026-SLD. Plaintiff alleges that while the lawsuit
was pending, Defendants Lodge and Parsons, who were members of the Rooming Committee,
decided to move Mr. Bell to the same wing and pod as Plaintiff in July 2021. Plaintiff filed an
“Emergency Grievance” asking to move to a different pod. Ultimately, Mr. Bell refused the
housing assignment.
Next, Plaintiff alleges that he was moved from Delta-1-13 to Delta-2-18 “with a highly
sexually motivated violent sex offender” on July 13, 2021. (Doc. 1 at p. 8). On the morning of
October 5, 2021, Plaintiff alleges that he woke up to find his roommate, Mr. Prefountain,
“snuggling” next to him in bed. Id. Plaintiff informed staff members, but they did nothing. Plaintiff
claims “this offending behavior” continued for the next four days. Plaintiff notified staff members

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each day, but they allegedly took no action. Plaintiff does not indicate who he spoke with about
Mr. Prefountain’s alleged behavior.
Plaintiff alleges that Mr. Prefountain sexually assaulted him on the morning of Friday,
October 10, 2021. Plaintiff informed staff members about the assault that morning, but nothing
was done until the following Monday when Plaintiff was informed that he would be assigned a
new roommate who had AIDS. Id. at p. 9. When Plaintiff refused the housing assignment, security
staff moved Mr. Prefountain instead. Plaintiff does not indicate who he spoke with about the sexual
assault on October 10, 2021.
On February 15, 2022, Plaintiff was assigned to a room with resident Rodriguez. Plaintiff
states that Mr. Rodriguez immediately asked Plaintiff “personal questions about [his] genitals” and
if Plaintiff wanted to engage in sexual activity. Id. at p. 10. Plaintiff alleges Mr. Rodriguez sexually
assaulted him on the morning of February 18, 2022. Later that morning, Plaintiff’s “primary” Ms.
Coleman, who is not named as a party, came to see Plaintiff. Plaintiff told her about the assault,
and she relayed to her superiors what happened. Nevertheless, Plaintiff remained in the same room
with Mr. Rodriguez over the weekend.
On February 21, 2022, Plaintiff was moved to disciplinary wing Fox-3, which had no
power or cable TV. Plaintiff alleges that he was being punished for being sexually assaulted.
Plaintiff states that Mr. Rodriguez was moved with another resident to Delta-3 and was not
punished for his actions. Plaintiff was moved off Fox-3 two days after he wrote to the
administration about why he was being punished.
On May 5, 2023, Plaintiff and another resident, James Kingsley, submitted resident room
change request forms requesting each other as roommates. On May 23, 2023, Defendant Lodge
denied the request and stated: “The Blue Team does not recommend this pairing, the rest of the

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Team had no comment.” Id. at p. 12. Plaintiff claims that Defendant Lodge did not approve the
request because Mr. Kingsley would not harm Plaintiff like his other roommates had.
Plaintiff alleges that when Mr. Bell was assigned to work in dietary as a dishwasher with
Plaintiff on May 11, 2023, Mr. Bell told Plaintiff on several occasions that “he’s going to beat
[him] down, if given the chance.” Id. at p. 13. Plaintiff wrote to Defendant Posey, who came to
see Plaintiff while he was working in dietary. Defendant Posey stated she could not do anything
and inquired if Plaintiff wanted to quit his assigned task in dietary because of the potential threat.
Plaintiff states that Mr. Bell was given conditional release and is currently in the C.R.
Readiness Group. On June 13, 2023, Mr. Bell allegedly threatened to physically assault Plaintiff.
ANALYSIS
Defendants Lodge and Parsons
Plaintiff may have a Fourteenth Amendment claim against staff members for allegedly
failing to take any meaningful action when Plaintiff informed them of the October 2021 and
February 2022 sexual assaults, but Plaintiff failed to name or identify the staff members in his
Complaint. See Swofford v. Mandrell, 969 F.2d 547, 549 (7th Cir. 1992) (holding that a due process
violation requires deliberate indifference to or reckless disregard of the detainee’s rights to be
protected from harm).
Plaintiff does not state a plausible claim against Defendants Lodge and Parsons based on
his roommate assignments without further facts that show Plaintiff was denied due process
amounting to punishment. See Mulvania v. Sheriff of Rock Island Cnty., 850 F.3d 849, 856 (7th
Cir. 2017) (“[T]he Fourteenth Amendment’s Due Process Clause prohibits holding pretrial
detainees in conditions that ‘amount to punishment.’”) (quoting Bell v. Wolfish, 441 U.S. 520, 535
(1979)).

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Plaintiff claims that Defendant Lodge denied his request to have Mr. Kingsley as his
roommate, but Plaintiff does not have the constitutional right to a roommate of his choosing. See
Riccardo v. Rausch, 375 F.3d 521, 525–26 (7th Cir. 2004). “Illinois is free, if it wishes, to give
prisoners veto power over the identity of their cellmates. But the eighth amendment does not do
so of its own force, and prisoners cannot use the Constitution to achieve this control indirectly by
making unsubstantiated assertions.” Riccardo v. Rausch, 375 F.3d 521, 528 (7th Cir. 2004); Smego
v. Jumper, 707 Fed. Appx. 411 (7th Cir. 2017) (civil detainees do not have the right to roommates
of their own choosing). Plaintiff has not alleged a factual basis for his belief that the refusal to
place him with a roommate of his choosing was due to discrimination or retaliation rather than a
clinical treatment decision.
Defendants Lodge and Parsons are dismissed without prejudice for failure to state a claim
under Federal Rule of Civil Procedure 12(b)(6) and 28 U.S.C. § 1915A.
Defendant Posey
Plaintiff alleges that when Mr. Bell was assigned to work in dietary with Plaintiff on May
11, 2023, Mr. Bell told Plaintiff on several occasions that “he’s going to beat [him] down, if given
the chance.” (Doc. 1 at p. 13). Plaintiff wrote to Defendant Posey, who came to see Plaintiff while
he was working in dietary. Defendant Posey stated she could not do anything and inquired if
Plaintiff wanted to quit his assigned task in dietary because of the potential threat.
A detainee’s conditions-of-confinement claim arises under the Fourteenth Amendment’s
Due Process Clause. Hardeman v. Curran, 933 F.3d 816, 823 (7th Cir. 2019). To prevail on a
failure-to-protect claim, a detainee must show that (1) he faced conditions that presented a
substantial risk of serious harm; and (2) that the official’s actions were objectively unreasonable.
Kemp v. Fulton Cnty., 27 F.4th 491, 496-97 (7th Cir. 2022); see also Kozar v. Munoz, 230 F. Supp.

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915, 919 (N.D. Ill. 2017). “[T]he plaintiff must show that he faced a risk of harm that was almost
certain to materialize if nothing is done. In the context of detainee-on-detainee assault, risks
attributable to … highly probable attacks and particular detainees who pose a heightened risk of
assault to the plaintiff satisfy this element.” Kozar, 230 F. Supp. 3d at 920 (quoting Brown v. Budz,
398 F.3d 904, 911 (7th Cir. 2005) (internal citation and quotations omitted)).
Here, Plaintiff does not allege that Defendant Posey knew about the prior assault or that
Mr. Bell posed a heightened risk of assault to Plaintiff. Plaintiff also does not allege that Mr. Bell
harmed him after making threats in May or June 2023. As currently pled, Plaintiff’s allegations do
not state a viable failure-to-protect claim. Defendant Posey is dismissed without prejudice for
failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) and 28 U.S.C. § 1915A.
Department of Human Services
Plaintiff names the Department of Human Services as a Defendant, but it does not qualify
as a “person” within the meaning of the Civil Rights Act and is not subject to a Section 1983 suit.
See generally Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989). Furthermore, as a
department of the State of Illinois, the Department of Human Services is immune from suit under
the Eleventh Amendment. See Hargett v. Baker, No. 02-1456, 2002 WL 1732911, at *2 (N.D. Ill.
July 26, 2002) (dismissing § 1983 claim against the Department of Human Services due to the
“well-established principle that states and state agencies enjoy immunity from suit in federal courts
under the Eleventh Amendment.”). It does not appear that Plaintiff can assert a claim under Section
1983 against the Department of Human Services; however, out of an abundance of caution,
Defendant Department of Human Services will be dismissed without prejudice. See Davis v. Dep't
of Hum. Servs., No. 13-CV-01260-JPG, 2014 WL 87995, at *2 (S.D. Ill. Jan. 9, 2014) (dismissing
Department Human Services without prejudice).

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Defendants Donathan, Epperson, and Ham
Plaintiff also names Greg Donathan, William Epperson, and Ham as Defendants, but he
did not include any allegations against them in his Complaint. Defendants Donathan, Epperson,
and Ham are dismissed without prejudice for failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6) and 28 U.S.C. § 1915A. See Jaros v. Illinois Dep’t of Corr., 684 F.3d 667, 670
n.2 (7th Cir. 2012) (omission of named defendant from body of complaint, but inclusion in caption,
“is the sort of pleading gaffe that, ordinarily, district courts should give pro se plaintiffs a chance
to correct by amendment”).
Unrelated Claims
Finally, Plaintiff’s allegations are not properly joined in one lawsuit. Unrelated claims
against the same defendant may be joined in one action, but different defendants can be joined in
one action only if the claims against them arise from the same series of transactions or occurrences.
Fed. R. Civ. P. 18, 20; Kadamovas v. Stevens, 706 F.3d 843 (7th Cir. 2013) (court “can require the
plaintiff ‘to file separate complaints, each confined to one group of injuries and defendants.’”)
(quoted cite omitted); George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (“Unrelated claims
against different defendants belong in different suits . . .”). The possibility that Plaintiff may have
told many of the same Defendants about the alleged problems does not make these separate
incidents part of the same transaction or occurrence.
IT IS THEREFORE ORDERED:
1)

Pursuant to its merit review of the Complaint under 28 U.S.C. § 1915A, Plaintiff's

Complaint is DISMISSED WITHOUT PREJUDICE for failure to state a claim under Federal Rule
of Civil Procedure 12(b)(6) and 28 U.S.C. § 1915A. The Court will allow Plaintiff the opportunity
to file an Amended Complaint clarifying his claims within 30 days of this Order. Failure to file an

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Amended Complaint will result in the dismissal of this case, without prejudice, for failure to state
a claim. Plaintiff's Amended Complaint will replace Plaintiff's Complaint in its entirety. The
Amended Complaint must contain all allegations against all Defendants. Piecemeal amendments
are not accepted.
2)

Plaintiff's Motion for Leave to Proceed in forma pauperis [3] is DENIED with leave to

reassert if he files an Amended Complaint.
3)

Plaintiff's Motion for Status [6] and Motion for Status of Merit Review Order [7] are

MOOT.
ENTERED: 11/13/2023
s/ Michael M. Mihm
Michael M. Mihm
United States District Judge

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