Montague v. Williams et al
MEMORANDUM Opinion and Order Signed by the Honorable Rebecca R. Pallmeyer on 5/30/2017. Mailed notice. (etv, )
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
Ramon Montague (#N-62212),
Tarry Williams, et al.,
Case No: 16 C 2609
Judge Rebecca R. Pallmeyer
MEMORANDUM OPINION AND ORDER
Plaintiff Ramon Montague, a prisoner at Stateville Correctional Center, brought this pro
se civil rights action under 42 U.S.C. § 1983 against multiple administrative and engineering
employees of the Illinois Department of Corrections, alleging unconstitutional conditions of
confinement. For the reasons set forth below, Defendants Williams and Lemke’s amended
motion to dismiss  is granted in part and denied in part. Plaintiff’s response , docketed
as a motion, is terminated.
Plaintiff alleges in his complaint that Defendants failed to remedy unconstitutional
conditions of his confinement at Stateville, including exposure to birds and bird feces, mice,
mold, contaminated water, and lead paint. (Compl.  at 7-23.) Defendants have moved to
dismiss , making three arguments: (1) Plaintiff’s complaint should be dismissed in its entirety
pursuant to Hoskins v. Dart, 633 F.3d 541, 543 (7th Cir. 2011) because Plaintiff failed to
disclose his litigation history; (2) Plaintiff’s claim regarding exposure to lead-based paint should
be dismissed for failure to state a claim; and (3) Plaintiff’s claim for injunctive relief must be
dismissed because he is a member of the class certified in Dobbey v. Weilding, Case No. 13 C
1068 (N.D. Ill.) (Dow, J.) In response, Plaintiff filed a motion  asking that Defendants’ motion
to dismiss be denied.
To survive a motion to dismiss under Rule 12(b)(6), a complaint must “state a claim to
relief that is plausible on its face.” Lodholtz v. York Risk Servs. Group, Inc., 778 F.3d 635, 639
(7th Cir. 2015) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). The factual allegations in the claim must be sufficient to raise the
possibility of relief above the “speculative level.” E.E.O.C. v. Concentra Health Servs., Inc., 496
F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 555). The court “construe[s] all
well-pleaded facts and draw[s] all inferences in the light most favorable to the nonmoving party.”
See Vesely v. Armslist LLC, 762 F.3d 661, 664 (7th Cir. 2014).
A plaintiff may plead himself out of court under Rule 12(b)(6) by alleging and thereby
admitting the elements of an affirmative defense. See U.S. Gypsum Co. v. Ind. Gas Co., Inc.,
350 F.3d 623, 626 (7th Cir. 2003).
Hoskins Does Not Require Dismissal of this Case.
Defendants argue that Plaintiff’s complaint should be dismissed pursuant to Hoskins v.
Dart, 633 F.3d 541, 543 (7th Cir. 2011) because he failed to disclose his litigation history.
Providing a complete record of past litigation is necessary to enable the court to determine
whether a plaintiff has accumulated three dismissals under 28 U.S.C. § 1915(g), and whether a
complaint asserts claims that are duplicative of or are related to claims stated in a prior suit.
At the time Plaintiff filed his complaint in this case, he had previously filed five cases in
the Northern District of Illinois: Montague v. Wexford Health Sources, Inc. et al., Case No. 11 C
5080 (N.D. Ill.) (Marovich, J.); Montague v. Hardy, Case No. 11 C 1552 (N.D. Ill.) (Gettleman, J.)
(habeas); Montague v. Detella, Case No. 97 C 2872 (N.D. Ill.) (Gettleman, J.) (habeas);
Montague v. Detella, Case No. 97 C 2033 (N.D. Ill.) (Gettleman, J.) (habeas); and Bey v.
Morrison, et al., Case No. 92 C 7325 (N.D. Ill.) (Marovich, J.). Plaintiff had also filed a case in
the Southern District of Illinois: Montague v. Lane, Case No. 3:88-cv-03270 (S.D. Ill.) (Cohn, J.)
In his complaint in this court, Plaintiff disclosed only one of these suits: Case No. 11 C 5080, but
he noted, on the page dedicated to litigation disclosure, that he was unable to retrieve other
information and that it “should be a matter of the record.” (Compl. at 5.)
The standard Section 1983 complaint form used by Plaintiff requires him to furnish a list
of all lawsuits Plaintiff had filed in any state or federal court in the United States and warns that
failure to provide complete information may result in dismissal of the complaint. (Id. at 4.) In
Hoskins, 633 F.3d at 543-44, the Seventh Circuit upheld a district court’s finding that a litigant’s
failure to fully disclose his litigation history, as expressly instructed on the complaint form,
amounted to fraud and warranted immediate dismissal. This case differs, however.
Montague did make an effort to disclose part of his litigation history, and all of the cases he
failed to disclose (with one exception: Case No. 11 C 1552 (a habeas action)) are more than
twenty years old. The age of these cases undermines any inference that Plaintiff’s omission
was intended as a fraud on the court.
In any event, the purpose of the litigation history
disclosure requirements are to track “strikes” assigned pursuant to 28 U.S.C. §1915(g) and to
track duplicate claims brought in different cases. Because “strikes” are not issued as a sanction
in federal habeas actions and it is extremely unlikely that a duplicate claim could have been
brought in a case that is more than twenty years old, the court declines to invoke the
discretionary sanction recognized in Hoskins. 1
Plaintiff May Proceed on His Claim of Lead Paint Contamination.
Defendants’ second argument is that Plaintiff’s Count 4, regarding his exposure to toxic
lead paint, should be dismissed. Plaintiff claims in his complaint that there is lead paint on the
walls that is blistered and peeling due to water leaking through the walls. (Compl. at 21.) He
In allowing this case to proceed, the court reminds Plaintiff that it is his
responsibility to disclose his litigation history. Plaintiff is advised to maintain a copy of this
order, which lists his previous litigation, as a reference for any future cases.
alleges, further, that the paint falls away from the walls, exposing him to toxic compounds
including lead carbonate, lead chromate, barium sulfate, and cadmium.
(Id. at 21-22.) These
compounds cause cancer, Plaintiff alleges, as well as other conditions including an intestinal
condition known as Painter’s Colic. (Id. at 22.) Plaintiff alleges he has suffered from Painter’s
Colic and colon cancer as a result of his exposure to the toxic substances leaching from his cell
Defendants cite to several district court opinions dismissing claims of exposure to lead.
See Mejia v. McCann, No. 08 C 4534, 2010 WL 5149273 at **8-9 (N.D. Ill. Dec. 10, 2010)
(Conlon, J.); see also, e.g., Thomas v. Cox, No. 10-CV-997-GPM, 2011 WL 3205660, at *4
(S.D. Ill. July 27, 2011) (Murphy, J.) (“Plaintiff's allegations of possible exposure to lead paint.
. . do not come close to describing the kind of objectively serious conditions that have
been found to state a constitutional claim for cruel and unusual punishment.”); Sanchez v.
McCann, No. 09 C 2289, 2010 WL 1408917 at *3 (N.D. Ill. Apr. 2, 2010) (Conlon, J.) (granting
motion to dismiss lead-based paint claims); Walker v. Dart, No. 09 C 1752, 2010 WL 669448 at
*3 (N.D. Ill. Feb.19, 2010) (Andersen, J.) (same); Foster v. Cooper, No. 92 C 6159, 1994 WL
110180 at *9 (N.D. Ill. Mar. 28, 1994) (Marovich, J.) (same); cf. Carroll v. DeTella, 255 F.3d 470,
472 (7th Cir. 2001) (holding that lead that accumulates in the water overnight from lead pipes,
which can be eliminated by running the water for a few minutes, is not a constitutional
As the Seventh Circuit has explained, “failing to provide a maximally safe
environment, one completely free from pollution or safety hazards, is not [a constitutional
violation].” Carroll, 255 F.3d at 472.
Defendants believe this authority dictates dismissal of Plaintiff Montague’s complaint, but
this court is less certain. Mejia was decided at the summary judgment stage of litigation, not on
a challenge to the pleadings. Mejia, 2010 WL 5149273, at *1. Carroll, too, was decided at the
summary judgment stage and on a more fully developed record. Carroll, 255 F.3d at 471; see
also White v. Monohan, 326 F. App’x 385, 387 (7th Cir. 2009) (distinguishing Carroll on this
basis and reversing dismissal of Eighth Amendment claim for contaminated water). Moreover,
the only injury asserted in Carroll was “possible” bladder cancer as opposed to the concrete
injuries—Painter’s Colic and colon cancer—Plaintiff claims to have sustained here. Carroll v.
DeTella, No. 99 C 2443, 2000 WL 20711, at *6 (N.D. Ill. Jan. 10, 2000); see also Truidalle
v.Taylor, No. 11 C 1170, 2011 WL 6780690, at *4 (N.D. Ill. Dec. 23, 2011) (distinguishing Carroll
on grounds that it merely “involved fear of heightened cancer risk”). Carroll, therefore, “does not
necessarily preclude the instant case” at this juncture. Truidalle, 2011 WL 6780690, at *4.
Plaintiff here has not offered specifics about how the exposure caused harm, and may ultimately
be unable to offer proof of causation. He has, however, adequately alleged that toxic paint
components leaching from his cell walls resulted in medical problems. The motion to dismiss
this claim is denied.
Plaintiff’s Claim for Injunctive Relief is Dismissed.
Defendants’ final argument is that because Plaintiff is a member of the class certified in
Dobbey v. Weilding, Case No. 13 C 1068 (N.D. Ill.) (Dow, J.) , his claim for injunctive relief must
be dismissed in this case, The class in Dobbey was certified for injunctive relief only. (See
Amended Order Granting Class Certification, Feb. 11, 2014, ( in No. 13 C 1068, at 6) (“The
lawsuit asks that the Court order these conditions be fixed. It does not ask for money damages
to be awarded to the Plaintiff Class.”); see also Class Notice, Jan. 1, 2015,  in No. 13 C
1068 (the Class Notice explains: “The Dobbey case does not seek money damages. It is only
seeking a court order requiring Stateville to improve its living conditions.”).) The Dobbey class
was certified under FED. R. CIV. P. 23(b)(1) & (2), which allows for declaratory and injunctive
relief. (Order, Jan. 14, 2015,  in No. 13 C 1068 (order denying inmates’ motions to opt out
to pursue their own lawsuits).)
In the instant case, Plaintiff seeks both monetary relief and injunctive relief. (, at 27.)
His request for injunctive relief is asserted in the Dobbey class action, of which he is a member
and from which he cannot opt out.
He may, however, continue with his claims for monetary
Jefferson v. Ingersoll Intern. Inc., 195 F.3d 894, 897 (7th Cir. 1999) (“Money
damages . . . are neither injunctive nor declaratory, and they do not affect a class as a whole.”).
Defendants’ motion to dismiss  is granted with respect to Plaintiff’s claim for
injunctive relief and otherwise denied. Plaintiff’s response  was docketed as a motion and is
terminated as moot. Defendants are directed to file an answer within 28 days. A status hearing
is set by telephone for Tuesday, July 25, 2017, at 8:30 a.m., the call to be initiated by defense
counsel from his office.
Date: May 30, 2017
REBECCA R. PALLMEYER
United States District Judge
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