Murithi v. Hardy et al

Filing 4

WRITTEN Opinion entered by the Honorable John J. Tharp, Jr on 2/11/2013: Plaintiff's motion for leave to file his complaint in forma pauperis 3 is granted. The Court assesses an initial partial filing fee of $6.50 and authorizes the t rust fund officer at Plaintiff's place of confinement to make deductions from Plaintiff's trust fund account in accordance with this order. The clerk shall mail a copy of this order to the trust fund officer at Stateville Correctional Ce nter. Plaintiff may proceed with his complaint against Warden Marcus Hardy and James Louch, and the clerk shall issues summonses for service of the complaint on the Defendants through the U.S. Marshal. The clerk shall also send Plaintiff a Magistrate Judge consent form and instructions for filing documents in this Court. Mailed notice. (ea, )

Order Form (01/2005)

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

John J. Tharp, Jr.

CASE NUMBER

13 C 599

CASE TITLE

Sitting Judge if Other
than Assigned Judge

DATE

2/11/2013

Mwenda Murithi (M-04215) vs. Marcus Hardy, et al.

DOCKET ENTRY TEXT

Plaintiff’s motion for leave to file his complaint in forma pauperis [3] is granted. The Court assesses an initial
partial filing fee of $6.50 and authorizes the trust fund officer at Plaintiff’s place of confinement to make deductions
from Plaintiff’s trust fund account in accordance with this order. The clerk shall mail a copy of this order to the
trust fund officer at Stateville Correctional Center. Plaintiff may proceed with his complaint against Warden
Marcus Hardy and James Louch, and the clerk shall issues summonses for service of the complaint on the
Defendants through the U.S. Marshal. The clerk shall also send Plaintiff a Magistrate Judge consent form and
instructions for filing documents in this Court.
O[ For further details see text below.]

Docketing to mail notices.

STATEMENT
Plaintiff, Mwenda Murithi, an inmate incarcerated at the Stateville Correctional Center (M-04215), brings
this action pursuant to 42 U.S.C. § 1983 against Stateville Warden Marcus Hardy and James Louch (the head of
maintenance for the prison). Plaintiff alleges that he has endured the following adverse prison conditions: unclean
cells with insufficient access to adequate cleaning supplies; peeling lead-based paint throughout the prison exposing
black mold in certain areas; cell vents that are covered either with steel plates or layers of dust, thus creating poor
air circulation; lengthy exposure to infestations of birds, mice, roaches, spiders, gnats, and moths; water
contaminated with carcinogens; and lights outside his cell kept on high 24 hours a day, preventing sleep. Plaintiff
states that Louch, who allegedly is responsible for the upkeep of Plaintiff’s living quarters, and Hardy, through
grievances and inspections, are both aware of the conditions but have refused to resolve them.
Plaintiff seeks to proceed in forma pauperis. His application indicates that he cannot prepay the $350 filing
fee. The Court grants the motion to proceed in forma pauperis and assesses an initial filing fee of $6.50. The
inmate trust accounts officer at Plaintiff’s place of confinement is authorized to deduct this amount from
Plaintiff’s trust fund account, when funds are available, and to forward this amount as an initial payment of the
filing fee. Thereafter, the trust fund officer shall make monthly deductions from Plaintiff’s trust fund account
equal to 20% of the preceding month’s income credited to the account. Monthly deductions shall be forwarded
as payments 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
of this case. Plaintiff shall remain responsible for the filing fee obligation, and Stateville officials shall notify
transferee authorities of any outstanding balance in the event Plaintiff is transferred.
This Court has conducted a preliminary review of the complaint in accordance with 28 U.S.C. § 1915A.
The allegations stated above state colorable claims against he Defendants with respect to Plaintiff’s claims that: His
cell was unsanitary and he was provided inadequate cleaning supplies, see Jamison–Bey v. Thieret, 867 F.2d 1046,

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STATEMENT
1047–49 (7th Cir. 1989); he endured a pest infestation over a significant period of time, Antonelli v. Sheahan, 81
F.3d 1422, 1431 (7th Cir. 1996); he was exposed to bright lights 24 hours a day outside his cell, Golden v. Berge,
No. 03 C 0403, 2003 WL 23221483 at *4 (W.D.Wis. Sept.25, 2003) (Crabb, J.); there was inadequate ventilation
due to vents being covered with either plates or dust, see Gillis v. Litscher, 468 F.3d 488, 493 (7th Cir. 2006) and
Board v. Farnham, 394 F.3d 469, 487 (7th Cir. 2005); and he was exposed to black mold, see Mejia v. McCann,
No. 08 C 4534, 2010 WL 5149273, *7(N.D. Ill. 2010) (Conlon, J.) (claim of exposure to black mold was dismissed
upon noting the lack of a health risk at the summary judgment stage).
Plaintiff may also proceed at this time with his claim of being exposed to contaminated water with radium
or other contaminants. Although courts have rejected similar water-contamination claims, they have done so at the
summary judgment stage based upon evidence demonstrating that the prison’s water either was not contaminated
above the state’s limit or was no different than the condition exposed to the non-prisoner general public in the same
vicinity as the prison. Truidalle v. Taylor, No. 11 C 1170, 2011 WL 6780690, *4 (N.D. Ill. Dec 23, 2011) (Lefkow,
J.) (noting that, although the Seventh Circuit has rejected a radium-contaminated water claim in Carroll v. DeTella,
255 F.3d 470, 472 (7th Cir. 2001), it did so after summary judgment and the existence of evidence that Stateville’s
water was no more contaminated than the general public’s in the same area);; see also Jones v. Hardy, No. 11 C
699, 2012 WL 1133797, *3 (N.D. Ill. Apr. 4, 2012) (Gottschall, J.) (contaminated-water claim allowed to proceed
at the initial stages of the case).
Summonses shall issue for service of the complaint on the Defendants, who are directed to respond to the
above listed claims.
Plaintiff’s claim of exposure to lead paint, however, is dismissed. See Mejia v. McCann, No. 08 C 4534,
2010 WL 5149273, *8 (N.D. Ill. Dec. 10, 2010) (Conlon, J.) (noting that “the judges of this court have repeatedly
held that claims of lead paint undercoats on prison walls are not the kind of deprivation of basic human needs
redressable under the Eighth Amendment), citing Walker v. Dart, No. 09 C 1752, 2010 WL 669448, *3 (N.D. Ill.
Feb.19, 2010) (Andersen. J.); Jones v. Mitchell, No. 93 C 405, 1994 WL, 517202, *3-4 (N.D. Ill. Sep.20, 1994)
(Moran, J.); Foster v. Cooper, No. 92 C 6159, 1994 WL 110180, *9 (N.D. Ill. Mar.28, 1994) (Marovich, J.).
The clerk shall issue summonses for service of the complaint through the U.S. Marshal on Defendants
Stateville Warden Marcus Hardy and Stateville’s head of maintenance James Louch. Any forms necessary for
Plaintiff to complete for the Marshal to accomplish service, shall be forwarded to Plaintiff by the Marshal.
Plaintiff’s failure to return those forms may result in the dismissal of Defendants. The Marshal is directed to make
all reasonable efforts to serve the Defendants. With respect to any former jail employees, officials at the Cook
County Jail shall furnish the Marshal with the Defendant’s last-known address. 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 the
Defendants in the manner prescribed by Fed. R. Civ. P. 4(d)(2) before attempting personal service; however, if
unable to obtain a waiver of service, the Marshal shall attempt to serve the Defendants personally.
Plaintiff is instructed to file all future papers concerning this action with the Clerk of the Court in care of
the Prisoner Correspondent. In addition, he must send an exact copy of any filing to the Defendants or, if
represented by counsel, to counsel for the Defendants. Plaintiff must include on the original filing 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 otherwise fails to comply with these instructions may be disregarded by the court or returned to
Plaintiff.

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