Patrick v. Davis

Filing 5

IT IS HEREBY ORDERED that all Federal Tort Claim Act claims and claims of negligence and gross negligence are DISMISSED with prejudice; Defendant RANDY DAVIS is DISMISSED without prejudice; and this complaint is DISMISSED without prejudice for fa ilure to state a relief upon which relief can be granted. IT IS FURTHER ORDERED that on or before October 11, 2013, Plaintiff shall file an amended complaint. Failure to file an amended complaint will likely result in the dismissal of this action and entry of judgment. Signed by Judge J. Phil Gilbert on 9/11/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ANTHONY PATRICK, No. M38082,
Plaintiff,
vs.
RANDY DAVIS,
Defendant.

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Case No. 13-cv-00844-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff Anthony Patrick, an inmate in the custody of the Illinois Department of
Corrections and housed at Vienna Correctional Center, brings this action for deprivations of his
constitutional rights pursuant to 42 U.S.C. § 1983 and the Federal Tort Claims Act (“FTCA”), 28
U.S.C. §§ 1346, 2671-2680. 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.
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
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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 complaint, the Court finds it appropriate to exercise its
authority under Section 1915A and summarily dismiss this action, albeit without prejudice.
Discussion
Plaintiff Patrick takes issue with the conditions of his confinement at Vienna Correctional
Center (“Vienna”), where he has been since July 19, 2013. In particular, Patrick complains
about the conditions of confinement in Building 19. According to the complaint: fire alarms go
off randomly; Patrick is being exposed to asbestos; rival gang members are housed in the same
unit; third shift guards sleep on the job and miss their rounds; grievance forms are not available;
legal mail is opened by staff; there is inadequate ventilation; the roof leaks; there are too few
working toilets and the working toilets overflow; there is mold in the shower; there is mold on
the bread; there are rodent droppings in the kitchen and living spaces; and mentally ill inmates
are not segregated. The complaint is also sprinkled with allegations of “negligence,” “gross

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negligence,” and “imminent danger.” Plaintiff seeks only monetary damages against Warden
Davis in his official and individual capacities.
Plaintiff brings this pro se civil rights action pursuant to 42 U.S.C. § 1983 and the
Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346, 2671-2680 (Doc. 1). The Federal Tort
Claims Act (“FTCA”), 28 U.S.C. §§ 1346, 2671-2680, provides jurisdiction for suits against the
United States regarding torts committed by federal officials, not state officials. Therefore, all
FTCA claims must be dismissed, with prejudice.
“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). A defendant
can never be held liable under Section 1983 for negligence, or even gross negligence. Gomez v.
Randle, 680 F.3d 859, 864 (7th Cir. 2012).
Relevant to Plaintiff’s conditions of confinement claims, 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). As the Supreme Court noted in Rhodes v. Chapman, 452 U.S.
337, 346 (1981), the amendment reaches beyond barbarous physical punishment to prohibit the
unnecessary and wanton infliction of pain and punishment grossly disproportionate to the
severity of the crime.

Id. (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)).

The

Constitution also prohibits punishment that is totally without penological justification. Gregg,
428 U.S. at 183.

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Not all prison conditions trigger Eighth Amendment scrutiny—only deprivations of
basic human needs like food, medical care, sanitation and physical safety. Rhodes, 452 U.S. at
346; see also James v. Milwaukee County, 956 F.2d 696, 699 (7th Cir. 1992). Prisoners cannot
expect the “amenities, conveniences, and services of a good hotel.” Harris v. Fleming, 839 F.2d
1232, 1235 (7th Cir.1988).

However, “[s]ome conditions of confinement may establish an

Eighth Amendment violation ‘in combination’ when each would not do so alone, but only when
they have a mutually enforcing effect that produces the deprivation of a single, identifiable
human need such as food, warmth, or exercise-for example, a low cell temperature at night
combined with a failure to issue blankets.” Wilson v. Seiter, 501 U.S. 294, 304 (1991).
As pleaded, some of these claims fail to state colorable constitutional claims.

For

example, fire alarms going off randomly does not rise to the level of an Eighth Amendment
violation, even though inmates and guards may become immune to the alarms and thus face a
higher risk of harm in the event of a real fire. Housing rival gang members together and not
segregating mentally ill inmates also do not amount to Eighth Amendment violations in and of
themselves. Also, conclusory legal statements do not meet the Rule 8 and Twombly pleading
standards.

The complaint is akin to a laundry list and simply does not provide enough

information to edge these claims from being possible to being plausible.
With that said, the claims regarding health and sanitation—such as exposure to asbestos
and mold, too few toilets, rodent droppings—are actionable Eighth Amendment claims. See
Vance v. Rumsfeld, 701 F.3d 193, 205-06 (7th Cir. 2012) (citing Wilson v. Seiter, 501 U.S. 294,
304 (1991) (holding that conditions of confinement may establish an Eighth Amendment
violation in combination, even if each might not suffice alone; this would occur when they have

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“a mutually enforcing effect that produces the deprivation of a single, identifiable human need
such as food, warmth, or exercise”)). Nevertheless, the complaint is still fatally flawed.
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 have caused or
participated in a constitutional deprivation.” Pepper v. Village of Oak Park, 430 F.3d 809, 810
(7th Cir. 2005) (citations omitted). As a result, 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).
Warden Randy Davis is the only named defendant. He is sued in both his
individual and official capacities. However, aside from Davis’s name appearing in the caption of
the complaint, he is not mentioned in the narrative portion of the complaint. Merely naming a
defendant in the caption is insufficient to state a claim. See Collins v. Kibort, 143 F.3d 331, 334
(7th Cir. 1998).
Although the doctrine of respondeat superior is not applicable to Section 1983 actions;
“[s]upervisory liability will be found … if the supervisor, with knowledge of the subordinate’s
conduct, approves of the conduct and the basis for it.” Lanigan v. Village of East Hazel Crest,
Ill., 110 F.3d 467, 477 (7th Cir. 1997); Chavez v. Illinois State Police, 251 F.3d 612, 651 (7th
Cir. 2001). See also Doyle v. Camelot Care Centers, Inc., 305 F.3d 603, 615 (7th Cir. 2002)
(allegations that an agency’s senior officials were personally responsible for creating the
policies, practices and customs that caused the constitutional deprivations suffice to demonstrate
personal involvement).

However, no policy or practice attributable to Davis is alleged or

intimated. Thus, in terms of individual liability, the complaint fails to state a claim against
Warden Davis.

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Absent any individual liability, a 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 (7th
Cir. 2001) (warden could be liable for injunctive relief relative to a prison policy imposing an
unconstitutional condition of confinement). Injunctive relief is not requested, and the Eleventh
Amendment bars official capacity claims for monetary damages. Brown v. Budz, 398 F.3d 904,
917-18 (7th Cir. 2005). Consequently, no official capacity claim has been stated either.
For these reasons, the complaint must be dismissed. Dismissal shall be without prejudice
and with leave to file an amended complaint consistent with this order.
Pending Motion
Plaintiff’s motion for leave to proceed in forma pauperis (Doc. 2) shall be addressed by
separate order.
Disposition
IT IS HEREBY ORDERED that, for the reasons stated, all Federal Tort Claim Act
claims and claims of negligence and gross negligence are DISMISSED with prejudice;
Defendant RANDY DAVIS is DISMISSED without prejudice; and this complaint is
DISMISSED without prejudice for failure to state a relief upon which relief can be granted.
IT IS FURTHER ORDERED that on or before October 11, 2013, Plaintiff shall file an
amended complaint. Failure to file an amended complaint will likely result in the dismissal of
this action and entry of judgment.
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

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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: September 11, 2013
s/ J. Phil Gilbert
J. PHIL GILBERT
UNITED STATES DISTRICT JUDGE

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