Smith v. Davis

Filing 9

ORDER DISMISSING CASE: IT IS ORDERED that the amended complaint (Doc. 8 ), including COUNTS 1, 2 and all other claims, is DISMISSED on the merits with prejudice for failure to state a claim upon which relief may be granted. IT IS FURTHER ORDERED that Defendant RANDY DAVIS is DISMISSED with prejudice from this action. Plaintiff is ADVISED that this dismissal shall count as one of his allotted "strikes" under the provisions of 28 U.S.C. § 1915(g). Signed by Judge J. Phil Gilbert on 10/25/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TYRONE D. SMITH, # B-54487,
Plaintiff,
vs.
RANDY DAVIS,
Defendant.

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Case No. 13-cv-00803-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
This matter comes before the Court for consideration of Plaintiff Tyrone Smith’s
amended complaint (Doc. 8). Plaintiff filed the original complaint (Doc. 1) on August 6, 2013,
to challenge the conditions of his confinement at Vienna Correctional Center (“Vienna”).
Plaintiff named Vienna’s warden, Randy Davis, as the only defendant in the original action and
demanded $50 million in damages. On September 3, 2013, the Court dismissed the complaint
without prejudice for failure to state a claim upon which relief may be granted (Doc. 7).
However, Plaintiff was granted leave to file an amended complaint on or before October 8, 2013,
which he has done.
In the amended complaint, Plaintiff asserts claims under 42 U.S.C. § 1983 and the
Federal Tort Claims Act, (“FTCA”), 28 U.S.C. §§ 1346, 2671-2680, arising from the conditions
of his confinement at Vienna. Plaintiff, once again, sues Defendant Davis in his individual and
official capacities for $50 million in damages (Doc. 8, pp. 5-6).
This case is now before the Court for a preliminary review of the amended complaint
pursuant to 28 U.S.C. § 1915A. Under § 1915A, the Court is required to promptly screen
prisoner complaints to filter out nonmeritorious claims. 28 U.S.C. § 1915A(a). The Court is
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required to dismiss any portion of the amended complaint that is legally frivolous, malicious,
fails to state a claim upon which relief may be granted, or asks for money damages from a
defendant who by law is immune from such relief. 28 U.S.C. § 1915A(b).
An action or claim is frivolous if “it lacks an arguable basis either in law or in fact.”
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). The claim of entitlement to
relief must cross “the line between possibility and plausibility.” Id. at 557. 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 amended complaint, the Court finds it appropriate to exercise
its authority under Section 1915A and summarily dismiss this action.
The Amended Complaint
The allegations in Plaintiff’s amended complaint are substantially similar to those set
forth in the original complaint (Doc. 1, p. 5; Doc. 8, p. 5). Plaintiff, once again, takes issue with

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the conditions of his confinement in Vienna’s Building #19, where he has been housed since
March 27, 2012 (Doc. 8, p. 5). As in the original complaint, Plaintiff includes a long string of
nonsensical terms that serve no apparent purpose, yet consistently appear in complaints filed by
Vienna inmates.
Beyond this, the amended complaint focuses on those conditions that Plaintiff addressed
in Items #2, #6, and #7 of the original complaint (Doc. 1, p. 5; Doc. 8, p. 5). The conditions
include exposure to asbestos, cracked pipes, improper restroom ventilation, moldy showers,
insufficient toilets, moldy food, inappropriately dressed dietary staff, moldy dining hall walls,
rodent droppings in the kitchen, and cockroaches in the food (Doc. 8, p. 5). The most significant
difference between the original and amended complaints is the allegation that “Randy Davis has
acknowledgement of” these conditions (Id.).
There is one other difference worth noting. In the original complaint, Plaintiff admitted
that there is a grievance procedure at Vienna, but he failed to present facts relating to the
complaint in the prisoner grievance procedure because he was denied access to grievance forms
(Doc. 1, p. 4). In the amended complaint, Plaintiff alleges that he has now filed a grievance to
address these conditions and is still waiting for a response (Doc. 8, p. 4). However, Plaintiff did
not provide the Court with a copy of the grievance. He also failed to provide the Court with any
information about it (e.g., when it was filed, to whom it was addressed, the issues that were
raised, whether verbal communications occurred in conjunction with its filing, etc.).
Plaintiff sues Vienna’s warden, Randy Davis, under 42 U.S.C. § 1983 and the FTCA,
28 U.S.C. §§ 1346, 2671-2680, for constitutional violations, gross negligence, and criminal
malfeasance, among other things. Plaintiff seeks $50 million in damages (Doc. 8, pp. 5-6).

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Merits Review Under § 1915A
After fully considering the allegations in the amended complaint, the Court concludes
that it fails to state any cognizable claim and shall be dismissed.

Below, the Court will

separately address Plaintiff’s FTCA claim (Count 1) and his § 1983 claim (Count 2). The Court
will also address the other claims that Plaintiff attempts to assert in the amended complaint.
Count 1 – FTCA Claim
The amended complaint fails to state any claim for relief under the FTCA (Count 1).
The FTCA provides jurisdiction for suits against the United States regarding torts committed by
federal officials, not state officials. Defendant Davis is a state official. Therefore, all FTCA
claims against him shall be dismissed.
Count 2 – Constitutional Claim Under § 1983
Likewise, the amended complaint fails to state a claim for relief under § 1983 based on
unconstitutional conditions of confinement (Count 2). “Section 1983 creates a federal remedy
against anyone who, under color of state law, deprives ‘any citizen of the United States . . . of
any rights, privileges, or immunities secured by the Constitution and laws.’” Planned
Parenthood of Indiana, Inc. v. Commissioner of Indiana State Dept. Health, 699 F.3d 962, 972
(7th Cir. 2012) (quoting 42 U.S.C. § 1983). Plaintiff’s amended complaint focuses on an Eighth
Amendment claim for unconstitutional conditions of confinement. The Eighth Amendment
prohibits cruel and unusual punishment and is applicable to the states through the Fourteenth
Amendment. It has been a means of improving prison conditions that were constitutionally
unacceptable. See, e.g., Robinson v. California, 370 U.S. 660, 666 (1962); Sellers v. Henman,
41 F.3d 1100, 1102 (7th Cir. 1994). In order to prevail on this claim, Plaintiff must allege facts
that, if true, would satisfy the objective and subjective components applicable to all Eighth

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Amendment claims. McNeil v. Lane, 16 F.3d 123, 124 (7th Cir. 1994); see also Wilson v. Seiter,
501 U.S. 294, 302 (1991).
The objective component focuses on the nature of the acts or practices alleged to
constitute cruel and unusual punishment. Jackson v. Duckworth, 955 F.2d 21, 22 (7th Cir. 1992).
The objective analysis examines whether the conditions of confinement exceeded contemporary
bounds of decency of a mature civilized society. Id. The condition must result in unquestioned
and serious deprivations of basic human needs or deprive inmates of the minimal civilized
measure of life’s necessities. Rhodes v. Chapman, 452 U.S. 337, 347 (1981); accord JamisonBey v. Thieret, 867 F.2d 1046, 1048 (7th Cir. 1989); Meriwether v. Faulkner, 821 F.2d 408, 416
(7th Cir. 1987). The amended complaint appears to satisfy the objective component of this test.
However, a plaintiff must also demonstrate the subjective component of an Eighth
Amendment claim. The subjective component of unconstitutional punishment is the intent with
which the acts or practices constituting the alleged punishment are inflicted. Jackson, 955 F.2d
at 22. The subjective component requires that a prison official had a sufficiently culpable state
of mind. Wilson, 501 U.S. at 298; see also McNeil, 16 F.3d at 124. In conditions of confinement
cases, the relevant state of mind is deliberate indifference to inmate health or safety; the official
must be aware of facts from which the inference could be drawn that a substantial risk of serious
harm exists, and he also must draw the inference. See, e.g., Farmer v. Brennan, 511 U.S. 825,
837 (1994); Wilson, 501 U.S. at 303; Estelle v. Gamble, 429 U.S. 97, 104 (1976); Del Raine v.
Williford, 32 F.3d 1024, 1032 (7th Cir. 1994).
The amended complaint fails to satisfy the subjective component of an Eighth
Amendment claim. Section 1983 creates a cause of action based on personal liability and
predicated upon fault; thus, “to be liable under [Section] 1983, an individual defendant must

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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 doctrine of respondeat superior does not
apply to actions filed under 42 U.S.C. § 1983. See, e.g., Kinslow v. Pullara, 538 F.3d 687, 692
(7th Cir. 2008).
Plaintiff identifies Defendant Davis as the only defendant in the caption of his amended
complaint. In the statement of claim, Plaintiff alleges that “Randy Davis has acknowledgement
of” the conditions at Vienna (Doc. 8, p. 5). No other allegations address Defendant Davis’
personal participation in a specific constitutional violation. Without more, this single allegation
is both vague and ambiguous. Certainly, it falls far short of establishing that Defendant Davis
was both: (1) aware of facts from which the inference could be drawn that a substantial risk of
serious harm exists; and (2) actually drew the inference. See Farmer, 511 U.S. at 837.
Plaintiff simply does not plead “enough facts to state a claim to relief that is plausible on
its face” as it pertains to deliberate indifference. Twombly, 550 U.S. at 570. Plaintiff could have
provided details that pushed his constitutional claim from the realm of possibility into the realm
of plausibility. Id. at 557. He could have described the steps he took to put Defendant Davis on
notice of the conditions, as well as Defendant Davis’ response. Plaintiff could have described
the content of his grievance, to whom it was addressed, when it was filed, and whether verbal
communications incident to its filing put Defendant Davis on notice of the conditions. Plaintiff
did not. Merely alleging that Defendant Davis “has acknowledgement of” the conditions is not
enough, even at this early stage in litigation. In terms of individual liability, the amended
complaint fails to state a claim for relief against Defendant Davis.
Absent any individual liability, the warden could still be liable in his official capacity, but
only for purposes of securing injunctive relief. See Delaney v. DeTella, 256 F.3d 679, 687

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(7th Cir. 2001) (warden could be liable for injunctive relief relative to a prison policy imposing
an unconstitutional condition of confinement). The amended complaint points to no such policy
and requests no injunctive relief. The Eleventh Amendment bars official capacity claims for
monetary damages. Brown v. Budz, 398 F.3d 904, 917-18 (7th Cir. 2005). Therefore, Plaintiff’s
official capacity claim against Defendant Davis fails. Based on the above analysis, Count 2 shall
be dismissed.
Other Claims
The Court also finds that Plaintiff has failed to state any other claim for relief in the
amended complaint. Plaintiff peppers the amended complaint with phrases, such as “gross
negligence,” “torque claim,” “criminal malfeasance,” etc. Conclusory legal statements do not
meet the pleading standards set forth under Rule 8 of the Federal Rules of Civil Procedure, nor
do these statements provide enough information to push these claims from the realm of
“possible” to “plausible.” Twombly, 550 U.S. at 557. Accordingly, these other claims shall be
dismissed.
For the reasons set forth above, the amended complaint fails to state a claim upon which
relief may be granted and shall therefore be dismissed.
Disposition
IT IS ORDERED that the amended complaint (Doc. 8), including COUNTS 1, 2 and all
other claims, is DISMISSED on the merits with prejudice for failure to state a claim upon which
relief may be granted.
IT IS FURTHER ORDERED that Defendant RANDY DAVIS is DISMISSED with
prejudice from this action.

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Plaintiff is ADVISED that this dismissal shall count as one of his allotted “strikes” under
the provisions of 28 U.S.C. § 1915(g). Plaintiff’s obligation to pay the filing fee for this action
was incurred at the time the action was filed, thus the filing fee of $350.00 remains due and
payable. See 28 U.S.C. § 1915(b)(1); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998).
If Plaintiff wishes to appeal this dismissal, he may file a notice of appeal with this Court
within thirty days of the entry of judgment. FED. R. APP. P. 4(a)(1)(A). A motion for leave to
appeal in forma pauperis should set forth the issues Plaintiff plans to present on appeal. See
FED. R. APP. P. 24(a)(1)(C). If Plaintiff does choose to appeal, he will be liable for the $455.00
appellate filing fee1 irrespective of the outcome of the appeal. See FED. R. APP. P. 3(e);
28 U.S.C. § 1915(e)(2); Ammons v. Gerlinger, 547 F.3d 724, 725-26 (7th Cir. 2008); Sloan v.
Lesza, 181 F.3d 857, 858-59 (7th Cir. 1999); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir.
1998). Moreover, if the appeal is found to be nonmeritorious, Plaintiff may also incur a “strike.”
A timely motion filed pursuant to Federal Rule of Civil Procedure 59(e) may toll the 30-day
appeal deadline. FED. R. APP. P. 4(a)(4).
The Clerk shall CLOSE THIS CASE and enter judgment accordingly.
IT IS SO ORDERED.
DATED: October 25, 2013
s/ J. Phil Gilbert
United States District Judge

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Effective December 1, 2013, the appellate filing fee increases to $500.00.

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