Carroll v. Kerrkee et al

Filing 8

IT IS HEREBY ORDERED that Plaintiffs complaint fails to state a claim upon which relief may be granted. COUNT 2 is DISMISSED without prejudice to Plaintiff bringing his claims in a properly filed habeas corpus action, following the exhaustion of all state court remedies. DEFENDANTS KERRKEE and CLINTON COUNTY JAIL are dismissed from this action without prejudice. DEFENDANTS MIDDENDORFF and CLINTON COUNTY STATES ATTORNEYS OFFICE are dismissed from this action with prejudice. IT IS FURTHER ORDER ED that, should Plaintiff wish to proceed on his claim in COUNT 1, Plaintiff shall file his First Amended Complaint, naming the individual Defendants directly responsible for the alleged deprivations in Count 1, within 35 days of the entry of this order. Dennis Middendorff, State's Attorney Office, Clinton County Jail and Mike Kerrkee terminated. (Action due by 8/14/2012). Signed by Judge J. Phil Gilbert on 7/10/2012. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MARK A. CARROLL, II, #B-86369,
Plaintiff,
vs.
MIKE KERRKEE, DENNIS
MIDDENDORF, CLINTON COUNTY
JAIL, and CLINTON COUNTY
STATE’S ATTORNEY’S OFFICE,
Defendants.

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CASE NO. 11-cv-633-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff Mark Carroll, an inmate at Graham Correctional Center, brings this action for
deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983, based on incidents that
occurred while Plaintiff was a pre-trial detainee at Clinton County Jail (“Clinton”). Plaintiff is
serving a four year sentence for forgery. This case is now before the Court for a preliminary
review of the complaint pursuant to 28 U.S.C. § 1915A, which provides:
(a) Screening.– The court shall review, before docketing, if feasible or, in any event, as
soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks
redress from a governmental entity or officer or employee of a governmental entity.
(b) Grounds for Dismissal.– On review, the court shall identify cognizable
claims or dismiss the complaint, or any portion of the complaint, if the complaint–
(1) is frivolous, malicious, or fails to state a claim on which relief
may be granted; or
(2) seeks monetary relief from a defendant who is immune from
such relief.
28 U.S.C. § 1915A.
An action or claim is frivolous if “it lacks an arguable basis either in law or in fact.”
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Neitzke v. Williams, 490 U.S. 319, 325 (1989). An action fails to state a claim upon which relief
can be granted if it does not plead “enough facts to state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Conversely, a complaint is
plausible on its face “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). Although the Court is obligated to accept factual allegations as true,
see Smith v. Peters, 631 F.3d 418, 419 (7th Cir. 2011), some factual allegations may be so
sketchy or implausible that they fail to provide sufficient notice of a plaintiff’s claim. Brooks v.
Ross, 578 F.3d 574, 581 (7th Cir. 2009). Additionally, Courts “should not accept as adequate
abstract recitations of the elements of a cause of action or conclusory legal statements.” Id. At
the same time, however, the factual allegations of a pro se complaint are to be liberally
construed. See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).
Upon careful review of the complaint and supporting exhibits, the Court finds it
appropriate to exercise its authority under § 1915A; this action is subject to summary dismissal.
The Complaint
Plaintiff’s complaint names Sheriff Mike Kerrkee (Clinton County), Circuit Judge Dennis
Middendorff, Clinton County Jail, and the Clinton County State’s Attorney’s Office, who
Plaintiff claims each violated his constitutional rights.
On October 28, 2010, Plaintiff was detained at Clinton, where an unnamed guard
conducted a routine medical screening. Plaintiff informed this individual that he had bipolar
disorder, paranoid schizophrenia, attention deficit hyperactivity disorder, and generalized anxiety
disorder, and needed to see a psychologist or psychiatrist about his medication. Plaintiff also

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requested to see a doctor about a rash. Plaintiff claims that he was not granted any access to
mental health treatment while at Clinton.
Plaintiff also takes issue with his preliminary hearing, presumably in the Clinton County
Circuit Court presided over by Defendant Judge Middendorff. Plaintiff claims that there was no
evidence to support the charges brought against him. Furthermore, Plaintiff asserts that the
preliminary hearing included testimony from his arresting officer, who recounted that Plaintiff’s
girlfriend said he “had nothing to do with this” (Doc. 1, p. 5).
Plaintiff requests compensatory and punitive damages for pain and suffering and mental
anguish.
Discussion
Based on the allegations of the complaint, the Court finds it convenient to divide the pro
se action into two (2) counts. The parties and the Court will use these designations in all future
pleadings and orders, unless otherwise directed by a judicial officer of this Court. The
designation of these counts does not constitute an opinion as to their merit.
Count 1 - Deliberate Indifference to a Medical Need
Plaintiff claims that he received no treatment for his mental disorders while detained at
Clinton. His statement that he “needed to see a psychologist or psychiatrist about my
medications” implies that Plaintiff may not have had medications available to him while he was
detained. However, the complaint is not clear on this point.
Although pre-trial detainees are not covered by the Eighth Amendment, their claims for
deliberate indifference to medical care are considered under the due process clause of the
Fourteenth Amendment, and are entitled to the same sort of protection against deliberate

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indifference as convicted inmates, no less. See Williams v. Romana, 411 F. App’x 900, 901 n.1
(7th Cir. 2011); Miller v. Hertz, 420 F. App’x 629, 634 (7th Cir. 2011).
Prison officials have a duty, in light of the Eighth Amendment’s prohibition
against cruel and unusual punishment, to “ensure that inmates receive adequate
food, clothing, shelter, and medical care.” Farmer v. Brennan, 511 U.S. 825, 832,
114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). To determine whether an inmate’s
Eighth Amendment rights were violated by a deprivation, we examine the alleged
violation both objectively and subjectively. See id. at 834, 114 S.Ct. 1970. “First,
the deprivation alleged must be, objectively, sufficiently serious.” Id. (quotation
omitted). Second, the mental state of the prison official must have been “one of
deliberate indifference to inmate health or safety.” Id. (quotation omitted).
Sanville v. McCaughtry, 266 F.3d 724, 733 (7th Cir. 2001). The Seventh Circuit has found that
“the need for a mental illness to be treated could certainly be considered a serious medical need.”
Id. at 734; Wellman v. Faulkner, 715 F.2d 269 (7th Cir. 1983). See also Gibson v. County of
Washoe, Nev., 290 F.3d 1175 (9th Cir. 2002); Waldrop v. Evans, 871 F.2d 1030, 1035 (11th Cir.
1989) (a doctor’s decisions to remove patient from medication and to restore the medication
without Lithium constitutes deliberate indifference to patient’s psychiatric condition).
Plaintiff names Defendant Kerrkee (Clinton County Sheriff) and Clinton County Jail as
defendants in this claim. In order to obtain relief against a municipality, a plaintiff must allege
that the constitutional deprivations were the result of an official policy, custom, or practice of the
municipality. Monell v. Dept. of Soc. Servs., 436 U.S. 658, 691 (1978); see also Pourghoraishi
v. Flying J, Inc., 449 F.3d 751, 765 (7th Cir. 2006). Furthermore, with regards to Defendant
Kerkee, “the doctrine of respondeat superior does not apply to § 1983 actions; thus to be held
individually liable, a defendant must be ‘personally responsible for the deprivation of a
constitutional right.’” Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001) (quoting
Chavez v. Ill. State Police, 251 F.3d 612, 651 (7th Cir. 2001)). See also Monell v. Dep’t of Soc.

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Servs., 436 U.S. 658 (1978); Eades v. Thompson, 823 F.2d 1055, 1063 (7th Cir. 1987);
Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983); Duncan v. Duckworth, 644 F.2d 653,
655-56 (7th Cir. 1981).
Plaintiff does not allege that a custom, practice, or policy exists within the Clinton
County Jail that prevented him from receiving mental health treatment. Nor does he claim that
Defendant Kerrkee had any personal involvement in the alleged denial of treatment. Rather,
Plaintiff’s complaint suggests that one or more of the individual guards at Clinton may have been
the parties frustrating his ability to see a mental health professional. As Plaintiff has chosen not
to include these unnamed prison guards in this action (in the caption or complaint), he has failed
to state a claim for deliberate indifference, and thus, this claim is subject to dismissal.
However, Plaintiff shall be granted leave to amend his complaint to name the individual
guard(s) who allegedly denied him access to mental health care and/or medication, if Plaintiff
wishes to proceed with this action.
Count 2 - Due Process
Plaintiff takes issue with the alleged lack of evidence presented against him at a
preliminary hearing in Clinton County in front of Defendant Middendorff.
[I]n order to recover damages for allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose unlawfulness would
render a conviction or sentence invalid, a § 1983 plaintiff must prove that the
conviction or sentence has been reversed on direct appeal, expunged by executive
order, declared invalid by a state tribunal authorized to make such determination,
or called into question by a federal court’s issuance of a writ of habeas corpus, 28
U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or
sentence that has not been so invalidated is not cognizable under § 1983. Thus,
when a state prisoner seeks damages in a § 1983 suit, the district court must
consider whether a judgment in favor of the plaintiff would necessarily imply the
invalidity of his conviction or sentence; if it would, the complaint must be
dismissed unless the plaintiff can demonstrate that the conviction or sentence has
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already been invalidated. But if the district court determines that the plaintiff’s
action, even if successful, will not demonstrate the invalidity of any outstanding
criminal judgment against the plaintiff, the action should be allowed to proceed, in
the absence of some other bar to the suit.
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994) (emphasis in original). “We do not engraft an
exhaustion requirement upon § 1983, but rather deny the existence of a cause of action. Even a
prisoner who has fully exhausted available state remedies has no cause of action under § 1983
unless and until the conviction or sentence is reversed, expunged, invalidated, or impugned by
the grant of a writ of habeas corpus.” Id. at 489. Plaintiff may challenge his conviction in a
habeas corpus action pursuant to 28 U.S.C. § 2254, but only after he has presented all of his
claims to the Illinois courts. Ordinarily, this will involve raising every issue at trial or in a postconviction motion, and appealing any adverse decisions to the Illinois Appellate Court and the
Illinois Supreme Court. Therefore, this claim shall be dismissed without prejudice.
Furthermore, Plaintiff’s claims against Defendant Middendorff shall not be allowed to
proceed simply because judges, being sued solely for judicial acts, are protected by absolute
judicial immunity. Mireles v. Waco, 502 U.S. 9, 11-12 (1991); Forrester v. White, 484 U.S. 219,
225-29 (1988); Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 347, 20 L.Ed. 646 (1872); Richman v.
Sheahan, 270 F.3d 430, 434 (7th Cir. 2001); Scruggs v. Moellering, 870 F.2d 376, 377 (7th Cir.),
cert. denied, 493 U.S. 956 (1989). Similarly, prosecuting attorneys have absolute immunity from
civil suit when acting within the scope of their duties to pursue a prosecution. See Imbler v.
Pachtman, 424 U.S. 409 (1976). Thus, regardless of the specific allegations against Defendants
Middendorff and Clinton County State’s Attorney’s Office, both Defendants have absolute
immunity and shall be dismissed with prejudice.

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Disposition
IT IS HEREBY ORDERED that Plaintiff’s complaint fails to state a claim upon which
relief may be granted. COUNT 2 is DISMISSED without prejudice to Plaintiff bringing his
claims in a properly filed habeas corpus action, following the exhaustion of all state court
remedies. DEFENDANTS KERRKEE and CLINTON COUNTY JAIL are dismissed from
this action without prejudice. DEFENDANTS MIDDENDORFF and CLINTON COUNTY
STATE’S ATTORNEY’S OFFICE are dismissed from this action with prejudice.
IT IS FURTHER ORDERED that, should Plaintiff wish to proceed on his claim in
COUNT 1, Plaintiff shall file his First Amended Complaint, naming the individual Defendants
directly responsible for the alleged deprivations in Count 1, within 35 days of the entry of this
order (on or before August 14, 2012).
Plaintiff is ADVISED that the First Amended Complaint shall contain ONLY the claims
designated in this Order as Count 1, and shall name ONLY those Defendants directly and
personally responsible for the allegedly unconstitutional acts (the individual guard(s) who
allegedly denied him access to mental health care and/or medication). Should the First Amended
Complaint not conform to these requirements, it shall be stricken and the entire case may be
dismissed. Failure to file an amended complaint may result in dismissal of this case pursuant to
Federal Rule of Civil Procedure 41(b).
An amended complaint supersedes and replaces the original complaint, rendering the
original complaint void. See Flannery v. Recording Indus. Ass’n of Am., 354 F.3d 632, 638 n.1
(7th Cir. 2004). The Court will not accept piecemeal amendments to the original complaint.

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Thus, the First Amended Complaint must stand on its own, and Plaintiff must re-file any exhibits
he wishes the Court to consider along with the First Amended Complaint.
Plaintiff is ADVISED that it is Plaintiff’s responsibility to provide the Court with the
names and service addresses for any Defendants named in his First Amended Complaint.
Service shall not be made on any Unknown (John Doe) Defendants until such time as Plaintiff
has identified them by name in a properly filed amended complaint.
Plaintiff is ADVISED that the case shall not proceed unless the First Amended
Complaint survives threshold review pursuant to 28 U.S.C. § 1915A.
Finally, Plaintiff is ADVISED that he is under a continuing obligation to keep the Clerk
of Court and each opposing party informed of any change in his address; the Court will not
independently investigate his whereabouts. This shall be done in writing and not later than 7
days after a transfer or other change in address occurs. Failure to comply with this order will
cause a delay in the transmission of court documents and may result in dismissal of this action
for want of prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: July 10, 2012

s/J. Phil Gilbert
United States District Judge

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