Mitchell v. Vienna Correctional Center

Filing 9

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams, denying 8 MOTION for a Federal Investigator filed by Kenneth L Mitchell. COUNTS 2 and 4 are DISMISSED without prejudice for failure to state a claim upon which relief may be granted. COUNTS 3 and 5 are DISMISSED with prejudice for failure to state a claim upon which relief may be granted. The Clerk of Court shall prepare for Defendant DAVIS: (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of a Summons), and (2) Form 6 (Waiver of Service of Summons). Signed by Judge Michael J. Reagan on 8/16/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KENNETH L. MITCHELL, # B-88904,

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Plaintiff,
vs.
WARDEN RANDY DAVIS,
Defendant.

Case No. 13-cv-627-MJR

MEMORANDUM AND ORDER
REAGAN, District Judge:
This matter is now before the Court for review of Plaintiff’s First Amended
Complaint (Doc. 7) pursuant to 28 U.S.C. § 1915A. In addition to the amended complaint,
Plaintiff has filed a motion for recruitment of a federal investigator (Doc. 8), which shall also be
addressed below. Plaintiff is currently incarcerated at Vienna Correctional Center (“Vienna”),
where he is serving a two-year sentence for aggravated DUI. He has brought this pro se civil
rights action pursuant to 42 U.S.C. § 1983.
In the amended complaint, Plaintiff repeats much of the disjointed legalese that
made up his initial statement of his claim, for example: “I’m under Imminent Danger Gross
Negligence. “Abestoes,” [sic] Punitive damages, Verosity, perpensity [sic]. Mental Anguish.
Torque claim, Criminal Malfeasance with harmfull intent, Reconstruction-Era law . . .” (Doc. 7,
p. 5). However, he adds eight new claims which include some factual statements regarding the
alleged unconstitutional conditions at Vienna.
In paragraphs 3, 6, and 7, Plaintiff states that his building contains asbestos
insulation and fibers float in the air; the building lacks ventilation, the roof leaks, urinals

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overflow, there are too few toilets, there is mold in the shower, mold on bread, and rodent
droppings in the kitchen and living quarters (Doc. 7, p. 5). These portions of Plaintiff’s claim
shall be designated as Count 1.
Plaintiff also complains that fire alarms go off on a random basis while living
units are locked and staff do not check for danger; inmates are housed with rival gang members
and with mental health patients; guards sleep on the night shift and fail to make rounds; inmates
are denied grievance forms, and legal mail is improperly opened (Doc. 7, p. 5, paragraphs 1, 2, 4,
5, and 8). These claims shall be designated as Counts 2-5, as discussed below.
Merits Review Pursuant to 28 U.S.C. § 1915A
Under § 1915A, the Court is required to conduct a prompt threshold review of the
complaint, and to dismiss any claims that are frivolous, malicious, fail to state a claim on which
relief may be granted, or seek monetary relief from an immune defendant. Accepting Plaintiff’s
allegations as true, the Court finds that Count 1 of the complaint articulates a colorable Eighth
Amendment claim against Defendant Davis for housing Plaintiff in conditions which place his
health at risk. However, Plaintiff’s remaining allegations fail to state a claim upon which relief
may be granted. Those claims (Counts 2-5) shall be dismissed for the following reasons.
Count 2 – Failure to Segregate Inmates
Plaintiff does not indicate that he has suffered any harm due to the Defendant’s
policy of housing rival gang members together, or of mixing mental health patients with other
inmates. These practices do not violate the Constitution in and of themselves. While “prison
officials have a duty . . . to protect prisoners from violence at the hands of other prisoners,”
Farmer v. Brennan, 511 U.S. 825, 833 (1994), not all instances of inmate-on-inmate violence
raise constitutional concerns. Plaintiff does not say that he has been attacked, nor does he claim

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that he was the target of any specific threat or that he requested protection from any prison
official. This claim shall be dismissed without prejudice.
Count 3 – Lack of Staff Monitoring
As with Count 2, Plaintiff does not claim to have been harmed by the alleged
failure of prison staff to check his housing unit each time a fire alarm goes off. Similarly, his
complaint that the night-shift guards sleep on their shift and do not conduct rounds as they
should, is not connected to any injury suffered by Plaintiff. This laundry list of complaints does
not rise to the level of a constitutional violation; Count 3 shall be dismissed with prejudice.
Count 4 – Opening of Legal Mail
An inmate’s legal mail is entitled to protection because of the potential for
interference with his right of access to the courts. Rowe v. Shake, 196 F.3d 778, 782 (7th Cir.
1999). Prison officials may violate an inmate’s rights if they open clearly marked legal mail
outside of the inmate's presence. See Wolff v. McDonnell, 418 U.S. 539, 577 (1974). However,
an isolated incident or inadvertent opening of legal mail is insufficient to state a constitutional
claim. See Rowe, 196 F.3d at 782; Bruscino v. Carlson, 654 F. Supp. 609, 618 (S.D. Ill. 1987).
In the instant complaint, Plaintiff states only that “legal mail is opened by the
staff” (Doc. 1, p. 5). He does not say when or how often this has occurred, nor does he indicate
whether any of his own legal mail was opened. This statement is too vague and general for the
Court to conclude that a constitutional violation has occurred. Count 4 shall be dismissed
without prejudice.
Count 5 – Denial of Grievance Forms
The Court does not condone the alleged failure of prison officials to make
grievance forms available to inmates.

However, this practice does not implicate any

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constitutional right. “[A] state’s inmate grievance procedures do not give rise to a liberty interest
protected by the Due Process Clause.” Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996).
The Constitution requires no procedure at all, and the failure of state prison officials to follow
their own procedures does not, of itself, violate the Constitution. Maust v. Headley, 959 F.2d
644, 648 (7th Cir. 1992); Shango v. Jurich, 681 F.2d 1091, 1100-01 (7th Cir. 1982).
Plaintiff’s efforts to exhaust his administrative remedies by using the prison
grievance process may be relevant in the event that a Defendant raises a challenge to Plaintiff’s
right to maintain a § 1983 suit over the issues outlined in his complaint. However, prison
officials’ failure to comply with the grievance procedure does not give rise to an independent
constitutional claim. Count 5 shall be dismissed with prejudice.
Pending Motion
Plaintiff’s motion (Doc. 8) for the Court to recruit and send a “federal
investigator” to look into his claims regarding the conditions at Vienna is DENIED. It is
Plaintiff’s responsibility to present evidence to the Court to prove his claims.
Disposition
COUNTS 2 and 4 are DISMISSED without prejudice for failure to state a claim
upon which relief may be granted. COUNTS 3 and 5 are DISMISSED with prejudice for
failure to state a claim upon which relief may be granted.
The Clerk of Court shall prepare for Defendant DAVIS: (1) Form 5 (Notice of a
Lawsuit and Request to Waive Service of a Summons), and (2) Form 6 (Waiver of Service of
Summons). The Clerk is DIRECTED to mail these forms, a copy of the First Amended
Complaint (Doc. 7), and this Memorandum and Order to Defendant’s place of employment as
identified by Plaintiff. If Defendant fails to sign and return the Waiver of Service of Summons

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(Form 6) to the Clerk within 30 days from the date the forms were sent, the Clerk shall take
appropriate steps to effect formal service on Defendant, and the Court will require Defendant to
pay the full costs of formal service, to the extent authorized by the Federal Rules of Civil
Procedure.
If the Defendant cannot be found at the address provided by Plaintiff, the
employer shall furnish the Clerk with the Defendant’s current work address, or, if not known, the
Defendant’s last-known address. This information shall be used only for sending the forms as
directed above or for formally effecting service. Any documentation of the address shall be
retained only by the Clerk. Address information shall not be maintained in the court file, nor
disclosed by the Clerk.
Plaintiff shall serve upon Defendant (or upon defense counsel once an appearance
is entered), a copy of every further pleading or other document submitted for consideration by
the Court. Plaintiff shall include with the original paper to be filed a certificate stating the date
on which a true and correct copy of any document was served on Defendant or counsel. Any
paper received by a district judge or magistrate judge that has not been filed with the Clerk or
that fails to include a certificate of service will be disregarded by the Court.
Defendant is ORDERED to timely file an appropriate responsive pleading to the
complaint and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g).
Pursuant to Local Rule 72.1(a)(2), this action is REFERRED to United States
Magistrate Judge Stephen C. Williams for further pre-trial proceedings.
Further, this entire matter shall be REFERRED to United States Magistrate
Judge Williams for disposition, pursuant to Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), if all
parties consent to such a referral.

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If judgment is rendered against Plaintiff, and the judgment includes the payment
of costs under § 1915, Plaintiff will be required to pay the full amount of the costs,
notwithstanding that his application to proceed in forma pauperis has been granted. See 28
U.S.C. § 1915(f)(2)(A).
Plaintiff is ADVISED that at the time application was made under 28 U.S.C.
§ 1915 for leave to commence this civil action without being required to prepay fees and costs or
give security for the same, the applicant and his or her attorney were deemed to have entered into
a stipulation that the recovery, if any, secured in the action shall be paid to the Clerk of the
Court, who shall pay therefrom all unpaid costs taxed against plaintiff and remit the balance to
plaintiff. Local Rule 3.1(c)(1).
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: August 16, 2013

s/ MICHAEL J. REAGAN
United States District Judge

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