Battle v. Dart et al

Filing 6

WRITTEN Opinion entered by the Honorable George W. Lindberg on 5/23/2012:Plaintiff's motion for leave to file in forma pauperis [# 3 ] is granted. The Court authorizes and orders the trust fund officer at the Cook County Jail to collect monthly payments from Plaintiff's trust fund account in accordance with this order. The Clerk is directed to forward a copy of this order to Supervisor of Inmate Trust Fund Accounts, Cook County Dept. of Corrections Administrative Office, Division V, 2 700 S. California, Chicago, IL 60608. The Clerk is directed to issue summons for Defendant Dart, and the United States Marshals Service is appointed to serve him. Defendant Dart remains as a Defendant solely for the purpose of identifying the John Doe Defendants. The Clerk shall send Plaintiff Instructions for Submitting Documents, along with a copy of this order. Plaintiff's motion for appointment of counsel [# 5 ] is denied. (For further detail see written opinion). Mailed notice(smm)

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

George W. Lindberg

CASE NUMBER

12 C 2885

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

5/23/2012

Jovan Battle (#2011-1204078) v. Tom Dart, et al.

DOCKET ENTRY TEXT:

Plaintiff’s motion for leave to file in forma pauperis [#3] is granted. The Court authorizes and orders the trust fund officer
at the Cook County Jail to collect monthly payments from Plaintiff’s trust fund account in accordance with this order. The
Clerk is directed to forward a copy of this order to Supervisor of Inmate Trust Fund Accounts, Cook County Dept. of
Corrections Administrative Office, Division V, 2700 S. California, Chicago, IL 60608. The Clerk is directed to issue
summons for Defendant Dart, and the United States Marshals Service is appointed to serve him. Defendant Dart remains
as a Defendant solely for the purpose of identifying the John Doe Defendants. The Clerk shall send Plaintiff Instructions
for Submitting Documents, along with a copy of this order. Plaintiff’s motion for appointment of counsel [#5] is denied.
O [For further details see text below.]

Docketing to mail notices.

STATEMENT
Plaintiff, Jovan Battle, presently in custody of the Cook County Jail, has brought this pro se civil rights
action pursuant to 42 U.S.C. § 1983. Plaintiff claims that on or about March 21, 2012, there was a fire in his cellhouse and he was exposed to heavy white smoke for over thirty minutes, suffering from smoke inhalation.
Plaintiff further alleges that he has been unable to receive adequate medical care for the resulting injuries to his
lungs. Plaintiff names Cook County Sheriff Tom Dart, Cermak Health Services, and Cook County Correctional
Facility Staffing, as well as several John Doe Defendants.
Plaintiff’s motion for leave to proceed in forma pauperis is granted. Pursuant to 28 U.S.C. § 1915(b)(1),
the plaintiff is assessed an initial partial filing fee of $7.01. The supervisor of inmate trust accounts at the Cook
County Jail is authorized and ordered to collect, when funds exist, the partial filing fee from Plaintiff’s trust fund
account and pay it directly to the Clerk of Court. After payment of the initial partial filing fee, the trust fund
officer at Plaintiff’s place of confinement is directed to collect monthly payments from Plaintiff’s trust fund
account in an amount equal to 20% of the preceding month’s income credited to the account. Monthly payments
collected from Plaintiff’s trust fund account shall be forwarded to the Clerk of Court each time the amount in the
account exceeds $10 until the full $350 filing fee is paid. All payments shall be sent to the Clerk, United States
District Court, 219 S. Dearborn St., Chicago, Illinois 60604, attn: Cashier’s Desk, 20th Floor, and shall clearly
identify Plaintiff’s name and the case number assigned to this action. The Cook County inmate trust account
office shall notify transferee authorities of any outstanding balance in the event Plaintiff is transferred from the
jail to another correctional facility.
Under 28 U.S.C. § 1915A, the Court is required to conduct a prompt initial review of prisoner complaints
against governmental entities or employees. Here, accepting Plaintiff’s factual allegations as true, Plaintiff has
alleged a valid claim for deliberate indifference to a substantial risk of serious harm. See, e.g., Rapier v. Harris,
172 F.3d 999, 1002 (7th Cir. 1999), relying on Bell v. Wolfish, 441 U.S. 520, 535 (1979). The Court further finds
that the complaint states a colorable cause of action under the Civil Rights Act for deliberate indifference to a
serious medical need. Davis v. Carter, 453 F.3d 686, 696 (7th Cir. 2006).
(CONTINUED)
AWL

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STATEMENT
However, Plaintiff has failed to state a cause of action against any named Defendant. Plaintiff makes his
claims against Defendant Dart in his supervisory capacity. Plaintiff has alleged no facts suggesting Dart’s direct,
personal involvement, as required by J.H. ex rel. Higgin v. Johnson, 346 F.3d 788, 793 (7th Cir. 2003), inter alia.
Nor has Plaintiff indicated that the alleged violation of his constitutional rights occurred at Dart’s direction or with
his knowledge and consent. Id. Section 1983 creates a cause of action based on personal liability and predicated
upon fault; thus, “to be liable under § 1983, an individual defendant must have caused or participated in a
constitutional deprivation.” Pepper v. Village of Oak Park, 430 F.3d 809, 810 (7th Cir. 2005) (citations omitted).
The mere fact that Defendant Dart holds a supervisory position is insufficient to establish liability, as the
doctrine of respondeat superior (blanket supervisory liability) does not apply to actions filed under 42 U.S.C. §
1983. See Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001). Section 1983 does not create collective or
vicarious responsibility. Id. Supervisors cannot be held liable for the errors of their subordinates. Birch v. Jones,
No. 02 C 2094, 2004 WL 2125416, at *6 (N.D. Ill. Sep. 22, 2004) (Manning, J.), citing Pacelli v. DeVito, 972 F.2d
871, 877 (7th Cir. 1992). “Supervisors who are merely negligent in failing to detect and prevent subordinates’
misconduct are not liable.” Chavez v. Illinois State Police, 251 F.3d 612, 651 (7th Cir. 2001) (citations omitted).
To be held liable under 42 U.S.C. § 1983, supervisors “must know about the conduct and facilitate it, approve it,
condone it, or turn a blind eye for fear of what they might see. They must in other words act either knowingly or
with deliberate, reckless indifference.” Id. In short, some causal connection or affirmative link between the action
complained about and the official sued is necessary for § 1983 recovery. Hildebrandt v. Illinois Dept. of Natural
Resources, 347 F.3d 1014, 1039 (7th Cir. 2003). Because Plaintiff has failed to state any facts suggesting that
Defendant Dart was personally involved in–or even aware of–the alleged circumstances giving rise to the
complaint, he has failed to state a claim against him.
With respect to Defendant Cermak Health Services and Cook County Correctional Facility Staffing, to the
extent that such a subdivision exists at the Cook County Jail, they are not suable entities. See Castillo v. Cook
County Mail Room Dept., 990 F.2d 304, 307 (7th Cir. 1993). Accordingly, they are dismissed as Defendants.
While Plaintiff has failed to state a claim against Defendant Dart, he is not dismissed as a Defendant.
Plaintiff names several John Doe Defendants. (See Plaintiff’s complaint). Plaintiff must name as Defendants the
individual correctional officers and doctors who were allegedly deliberately indifferent to his safety and serious
medical condition. If Plaintiff cannot name the individual security and medical personnel, he can name a
supervisory official such as Tom Dart for the purpose of identifying unknown defendants. See Donald v. Cook
County Sheriff’s Dept., 95 F.3d 548, 556 (7th Cir. 1996); Billman v. Indiana Dept. of Corrections, 56 F.3d 785,
789-90 (7th Cir. 1995). Thus, Dart remains as a Defendant only to the extent that he is necessary to assist Plaintiff
in identifying the unnamed correctional and medical personnel.
Plaintiff is advised to conduct discovery as soon as possible to obtain the names of the correctional and
medical personnel in question. The statute of limitations for Section 1983 actions filed in Illinois is two years.
See 735 ILCS § 5/13-202; Henderson v. Bolanda, 253 F.3d 928, 931 (7th Cir. 2001), citing Ashafa v. City of
Chicago, 146 F.3d 459, 462 (7th Cir. 1998). In this circuit, a Plaintiff cannot invoke the relation back principles
of Rule 15(c) to replace John Doe Defendants with named Defendants after the statute of limitations has expired.
See Worthington v. Wilson, 8 F.3d 1253, 1256-57 (7th Cir. 1993); see also Wood v. Worachek, 618 F.2d 1225, 1230
(7th Cir. 1980).
The Clerk shall issue a summons for service of the complaint on Defendant Dart (hereinafter, “Defendant”).
The Clerk shall also send Plaintiff a Magistrate Judge Consent Form and Instructions for Submitting Documents
along with a copy of this order.
The United States Marshals Service is appointed to serve Defendant Dart. Any service forms necessary
for Plaintiff to complete will be sent by the Marshal as appropriate to serve Defendant Dart with process. The U.S.
(CONTINUED)

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STATEMENT
Marshal is directed to make all reasonable efforts to serve Defendant. The information shall be used only for
purposes of effectuating service [or for proof of service, should a dispute arise] and any documentation of the
address shall be retained only by the Marshal. Address information shall not be maintained in the Court file, nor
disclosed by the Marshal. The Marshal is authorized to mail a request for waiver of service to Defendant in the
manner prescribed by FED. R. CIV. P. 4(d)(2) before attempting personal service.
Plaintiff is instructed to file all future papers concerning this action with the Clerk of Court in care of the
Prisoner Correspondent. Plaintiff must provide the Court with the original plus a complete judge’s copy, including
any exhibits, of every document filed. In addition, Plaintiff must send an exact copy of any Court filing to
Defendant [or to defense counsel, once an attorney has entered an appearance on behalf of Defendant]. Every
document filed with the Court must include a certificate of service stating to whom exact copies were mailed and
the date of mailing. Any paper that is sent directly to the judge or that otherwise fails to comply with these
instructions may be disregarded by the Court or returned to Plaintiff.
Plaintiff has also filed a motion for appointment of counsel. The motion is denied. Plaintiff has no right
to counsel. See Romanelli v. Suliene, 615 F.3d 847, 851 (7th Cir. 2010); Johnson v. Doughty, 433 F.3d 1001, 1006
(7th Cir. 2006). Plaintiff has proven himself able to adequately represent himself thus far. The case at the present
time does not involve complex discovery or an evidentiary hearing, and Plaintiff’s current pleadings indicate that
he has the presence of mind and intellectual capability to continue representing himself at this stage of the
proceedings. Accordingly, his motion for the appointment of counsel is denied without prejudice. See Pruitt v.
Mote, 503 F.3d 647, 656-59. (7th Cir. 2007). Consequently, the Court denies his motion without prejudice to
renewal should the case proceed to a point that assistance of counsel is appropriate.

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