Santana v. Kempfer et al

Filing 6

ORDER REFERRING CASE to Magistrate Judge Philip M. Frazier. COUNT 5 is DISMISSED with prejudice for failure to state a claim upon which relief may be granted. The Clerk of Court shall prepare for Defendants KEMPFER, HARRINGTON, VEATH, HART, SCHURTZ, and PELKER: (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 J. Phil Gilbert on 12/18/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JUAN SANTANA, # R-59214,
Plaintiff,
vs.
K. KEMPFER, R. HARRINGTON,
T. VEATH, J. HART,
SGT. SCHURTZ, SGT. PELKER,
and UNKNOWN PARTIES,
Defendants.

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Case No. 13-cv-1229-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff, currently incarcerated at Menard Correctional Center (“Menard”), has brought
this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff is serving a life sentence for
murder as well as a 30-year sentence for arson. Plaintiff claims that Defendants held him in two
segregation cells that were unfit for habitation, and that he was denied due process protections in
a disciplinary hearing.
Plaintiff’s complaint explains that on August 21, 2013, he was transferred from Stateville
Correctional Center to Menard, and was held “under investigation in punitive segregation” in cell
number 407, wing N-2, for the first month of his stay (Doc. 1, pp. 6, 8). The cell was filthy and
had an overwhelming odor of urine and mold; the walls were moldy and the floor was covered
with paint chips that had peeled off the walls. Plaintiff’s mattress had huge yellow stains that
smelled like urine and mold. The temperatures were in the 90-100 degree range and the cell had
a steel mesh door, making it excessively hot. A large and very loud industrial fan was in
operation around the clock near Plaintiff’s cell, making it nearly impossible to sleep and
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providing little relief from the heat (Doc. 1, pp. 6-7).
Plaintiff asked several John Doe Correctional Officers for cleaning supplies, a new
mattress and/or linens to cover the filthy mattress, and hygiene supplies. Despite these requests,
Plaintiff spent the first nine days in the cell without any soap, toilet tissue, toothpaste, shampoo,
deodorant, or his fan. He was forced to use two socks instead of toilet paper and had no soap to
wash them out. Plaintiff developed vomiting, headaches, insomnia, ringing in his ears, and an
itching skin rash because of these conditions. Although he received some personal hygiene
items and his fan after nine days, it appears that he was never provided with any linens or
cleaning supplies for the cell, nor was the mattress replaced. He wrote several requests to be
seen during sick call, and asked several John Doe Officers to help him get medical attention, but
never received a medical visit for the 30 days he was in this cell (Doc. 1, p. 7).
On September 20, 2013, Plaintiff appeared before the adjustment committee (Defendants
Veath and Hart) for a hearing on a disciplinary charge that Plaintiff was a member of a security
threat group (Doc. 1, pp. 8, 13). Plaintiff maintained he was not a gang member, attempted to
present a written statement in his defense, and requested two witnesses. However, Defendant
Veath did not call Plaintiff’s witnesses and refused to accept his written statement. Before the
hearing ended, Plaintiff asked Defendant Veath to help him correct the conditions in his cell, and
to help him get medical care; both requests were refused.
Relying on the statement of an officer and two confidential informants, Defendants Veath
and Hart found Plaintiff guilty of the charge. Defendant Harrington approved their findings. He
was punished with three months in segregation, among other sanctions (Doc. 1, p. 13). Plaintiff
was moved to cell number 639 in wing N-2 on September 21, 2013. This cell was in worse
condition than the first cell, and Plaintiff had to share the 40-square-foot space with another

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inmate. The walls appeared to be smeared with dried blood and feces, were moldy, and the paint
was peeling (Doc. 1, p. 9). Plaintiff’s mattress was stained and smelled of urine. The toilet was
filthy and caked with waste.
On September 25, Plaintiff asked Defendant Kempfer for a new mattress, cleaning
supplies, and linen; he responded with profanity and did nothing to help. On October 9, 2013,
Plaintiff repeated these requests to Defendant Schurtz, who told him to ask the gallery officer.
Plaintiff had already done this; Defendant Schurtz did nothing further. On November 1, 2013,
Plaintiff asked Defendant Pelker for the same items but was ignored (Doc. 1, pp. 10). Later that
day, Plaintiff asked a different officer (Wenzell, who is not a Defendant) for help; he responded
by getting Plaintiff sheets and a blanket. Plaintiff filed three emergency grievances over the
conditions, directed to Defendant Warden Harrington, but never got any response.
During his time in the second segregation cell, Plaintiff’s health problems continued and
grew worse. Plaintiff was finally seen by a nurse on November 14, 2013, and was given
ointment for his rash, and Tylenol (Doc. 1, p. 9).
Plaintiff seeks declaratory and injunctive relief, as well as compensatory and punitive
damages (Doc. 1, p. 11).
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 Plaintiff has articulated the
following colorable federal claims, which shall receive further review:
Count 1: Eighth Amendment claim against the Unknown Party (John Doe) Correctional

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Officers who worked on N-2 segregation, 4 Gallery between August 21 and September 21, 2013,
for subjecting Plaintiff to unsanitary cell conditions in Cell No. 407 and denying his requests for
personal hygiene supplies;
Count 2: Eighth Amendment claim against the Unknown Party (John Doe) Correctional
Officers who worked on N-2 segregation, 4 Gallery between August 21 and September 21, 2013,
for refusing Plaintiff’s requests for assistance in obtaining medical care;1
Count 3: Against Defendants Veath and Hart, for deprivation of a liberty interest
without due process, in that their failure to allow Plaintiff to present a defense or call witnesses
in his disciplinary hearing led to his confinement for 90 days in segregation under deplorable
conditions;
Count 4: Eighth Amendment claim against Defendants Kempfer, Shurtz, and Pelker for
failing to remedy the unsanitary cell conditions in Cell No. 639, N-2 wing.
Dismissal of Count 5- Claims Against Defendant Harrington
Plaintiff fails to state any substantive claim against Defendant Harrington for the
violation of his constitutional rights. Plaintiff’s allegations indicate that Defendant Harrington
gave administrative approval to his punishment with three months in punitive segregation after
the flawed disciplinary hearing. However, Defendant Harrington did not conduct the hearing,
nor was he personally involved in the alleged denial of Plaintiff’s procedural due process
protections. Liability in a civil rights action will not attach unless a defendant had direct,

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Plaintiff does not state a claim against Defendant Veath for failing to intervene to help Plaintiff obtain
medical care, or to remedy the cell conditions in cell number 407. The complaint does not suggest that
Defendant Veath had any responsibility for the condition of Plaintiff’s first segregation cell. Further, he
did not have a duty to come to Plaintiff’s rescue merely because Plaintiff asked for help during the
disciplinary hearing. See Burks v. Raemisch, 555 F.3d 592, 595-96 (7th Cir. 2009) (officials can be held
responsible only for their own misdeeds; mere knowledge of an alleged constitutional violation by
another party does not create liability).
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personal involvement in the deprivation of a constitutional right. Sanville v. McCaughtry, 266
F.3d 724, 740 (7th Cir. 2001) (citations omitted). Further, a warden cannot be held liable merely
because he was the supervisor of the prison employee who violated an inmate’s constitutional
rights – the doctrine of respondeat superior is not applicable to § 1983 actions. Id.
Likewise, Defendant Harrington does not incur liability for failing to respond to
Plaintiff’s grievances. The Seventh Circuit instructs that the alleged mishandling of grievances
“by persons who otherwise did not cause or participate in the underlying conduct states no
claim.” Owens v. Hinsley, 635 F.3d 950, 953 (7th Cir. 2011).
For these reasons, Count 5 against Defendant Harrington shall be dismissed with
prejudice. However, Defendant Harrington shall remain as a party to the action, both to respond
to discovery requests and for the purpose of carrying out any injunctive relief to which Plaintiff
may be entitled. See Gonzalez v. Feinerman, 663 F.3d 311, 315 (7th Cir. 2011) (proper
defendant in a claim for injunctive relief is the government official responsible for ensuring any
injunctive relief is carried out).
Pending Motions
Plaintiff filed a motion for leave to proceed in forma pauperis (“IFP”) (Doc. 2), but
included only part of the required six months of his prison trust fund account records. He has
been ordered to submit the remaining documentation no later than January 10, 2014 (Doc. 5).
The Court must review the full six months of records in order to determine whether Plaintiff is
entitled to proceed IFP, and if so, the amount of his initial partial filing fee. Accordingly, the
motion for leave to proceed IFP shall be held in abeyance pending Plaintiff’s compliance with
the order at Doc. 5. If Plaintiff’s records are not timely submitted, this action shall be subject to
dismissal for failure to comply with an order of this Court. See FED. R. CIV. P. 41(b).

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Plaintiff’s motion for recruitment of counsel (Doc. 3) shall be referred to the United
States Magistrate Judge for further consideration.
Disposition
COUNT 5 is DISMISSED with prejudice for failure to state a claim upon which relief
may be granted.
The Clerk of Court shall prepare for Defendants KEMPFER, HARRINGTON,
VEATH, HART, SCHURTZ, and PELKER: (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 complaint, and this Memorandum and Order to
each Defendant’s place of employment as identified by Plaintiff. If a Defendant fails to sign and
return the Waiver of Service of Summons (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 that Defendant,
and the Court will require that Defendant to pay the full costs of formal service, to the extent
authorized by the Federal Rules of Civil Procedure.
Service shall not be made on the Unknown (John Doe) Defendants until such time as
Plaintiff has identified them by name in a properly filed amended complaint. Plaintiff is
ADVISED that it is Plaintiff’s responsibility to provide the Court with the names and service
addresses for these individuals.
With respect to a Defendant who no longer can be found at the work 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

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or disclosed by the Clerk.
Plaintiff shall serve upon Defendants (or upon defense counsel once an appearance is
entered), a copy of every 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 the document was served on Defendants 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.
Defendants are 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 a United States
Magistrate Judge for further pre-trial proceedings, which shall include a determination on the
pending motion for recruitment of counsel (Doc. 3).
Further, this entire matter shall be REFERRED to the United States Magistrate Judge 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.
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.

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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: December 18, 2013
s/ J. Phil Gilbert
United States District Judge

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