Davis v. Department of Human Services et al

Filing 6

IT IS HEREBY ORDERED that all claims regarding (1) the use of derogatory and/or threatening language, and (2) the violation of state laws, regulations or policies are DISMISSED with prejudice. IT IS FURTHER ORDERED that the DEPARTMENT OF HUMAN S ERVICES, the CHESTER MENTAL HEALTH CENTER OFFICE OF INSPECTOR GENERAL, and the ILLINOIS DEPARTMENT OF HUMAN SERVICES OFFICE OF INSPECTOR GENERAL are all DISMISSED without prejudice. IT IS FURTHER ORDERED that COUNT 1 against CHESTER MENTAL HEALTH CE NTER STAFF is DISMISSED without prejudice and with leave to amend. IT IS FURTHER ORDERED that Plaintiff's motion for the recruitment of counsel (Doc. 5 ) is GRANTED. (Amended Pleadings due by 4/9/2014). Signed by Judge J. Phil Gilbert on 1/9/2014. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CHRISTOPHER NOVUS DAVIS,
No. L135898,

)
)
)
Plaintiff,
)
)
vs.
)
)
DEPT. OF HUMAN SERVICES,
)
CHESTER MENTAL HEALTH CENTER, )
OFFICE OF INSPECTOR GENERAL,
)
Dept. of Human Services, and
)
OFFICE OF INSPECTOR GENERAL,
)
Chester Mental Health,
)
)
Defendants.
)

Case No. 13-cv-01260-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff Christopher Novus Davis, an inmate in the Lake County Jail, brings this action
for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983, based on his being
assaulted by staff while he was housed at Chester Mental Health Center. The complaint suggests
that Plaintiff was a civil detainee while housed at Chester Mental Health Center.
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

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(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). Frivolousness is an objective standard that refers
to a claim that “no reasonable person could suppose to have any merit.” Lee v. Clinton, 209 F.3d
1025, 1026-27 (7th Cir. 2000). 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).
The Complaint
According to the complaint, on December 26, 2011—just after Plaintiff arrived at the
facility—he stood up in the dining area during breakfast in order to retrieve a forgotten container
of milk. Plaintiff was unaware that standing without permission is against the rules. Three
security therapy aides (“STA’s”) approached Plaintiff. The situation escalated, with one STA
indicating he/she did not want to deal with “retarded motherfuckers” that early in the morning,
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and another STA threatening to tie down Plaintiff. Additional staff arrived; Plaintiff was cuffed
behind his back and walked back to his living unit. Along the way, Plaintiff was taunted with
racial comments and threatened that the STA’s had “something” for his “tough ass.” Although
Plaintiff was cooperating, when the group reached an area without complete camera coverage,
Plaintiff was beaten about the face and choked, resulting in his eyes hemorrhaging. He was
subsequently strapped down in a restraint bed for close to four hours.
The next day, upon Plaintiff’s complaint, the facility’s internal Office of Inspector
General investigated, as did the Illinois Department of Human Services’ Office of Inspector
General. The Illinois Guardianship & Advocacy Commission also investigated and reported on
the incident, finding “policy” violations and making recommendations regarding camera
coverage, reporting, de-escalation, etc.

Based on the allegations in the complaint and the

documentation attached to the compliant, none of the investigations confirmed or refuted the
alleged use of excessive force, but Plaintiff’s eye hemorrhaging apparently was confirmed.
The Court finds that the complaint states a single colorable constitutional claim:
Count 1: On December 26, 2011, unidentified staff at Chester Mental
Health Center used excessive force against Plaintiff, in
violation of the Fourteenth and/or Eighth Amendment.
The reasons for recognizing only a single claim and the viability of Count 1 will be
discussed below. At this juncture, even this single claim cannot proceed, as there is no identified
defendant to receive service of process.
Discussion
Claims and Defendants
Claims concerning the conditions of confinement of civil detainees are
assessed under the due process clause of the Fourteenth Amendment. See West v.
Schwebke, 333 F.3d 745, 747–48 (7th Cir. 2003). Civil detainees “are entitled to
more considerate treatment and conditions of confinement than criminals whose
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conditions of confinement are designed to punish.” Youngberg v. Romeo, 457
U.S. 307, 321–22, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982). But the Supreme Court
has not determined how much additional protection civil detainees are entitled to
beyond the protections afforded by the Eighth Amendment bar on cruel and
unusual punishment.
McGee v. Adams, 721 F.3d 474, 480 (7th Cir. 2013). Accordingly, the Eighth Amendment
provides the relevant threshold for liability, regardless of Plaintiff Davis’s status.
The Eighth Amendment to the United States Constitution prohibits being subjected to
cruel and unusual punishment. See also Berry v. Peterman, 604 F.3d 435, 439 (7th Cir. 2010).
For example, the intentional use of excessive force by prison guards against an inmate without
penological justification constitutes cruel and unusual punishment. See Wilkins v. Gaddy, 559
U.S. 34 (2010); DeWalt v. Carter, 224 F.3d 607, 619 (7th Cir. 2000). Thus, the principal
allegations of the complaint state a colorable claim, which has been framed as Count 1. Other
allegations and assertions, however, fail to state viable claims.
Name-calling, racially derogatory language, and rude, boorish behavior do not violate the
Eighth Amendment. See, e.g., DeWalt, 224 F.3d at 612; McDowell v. Jones, 990 F.2d 433, 434
(8th Cir. 1993); Patton v. Przybylski, 822 F.2d 697, 700 (7th Cir.1987). Therefore, all such
claims will be dismissed with prejudice.
The violation of state laws, regulations and policies, alone, does not present a
constitutional violation, either. See Archie v. City of Racine, 847 F.2d 1211, 1217 (7th Cir.
1988); Pasiewicz v. Lake Cnty. Forest Preserve Dist., 270 F.3d 520, 526 (7th Cir. 2001).
Therefore, all such claims will be dismissed with prejudice.
Furthermore, none of the named defendants qualify as a “person” within the meaning of
the Civil Rights Act, and are not subject to a Section 1983 suit. See generally Will v. Mich. Dep't
of State Police, 491 U.S. 58, 71 (1989). The doctrine of respondeat superior is not applicable to

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Section 1983 actions. Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001) (citations
omitted). Plaintiff has not alleged that any of the defendant entities are “personally responsible
for the deprivation of a constitutional right.” Id. Nor is it alleged that there is a policy or
practice that could form the basis for liability.

Consequently, the Department of Human

Services, the Chester Mental Health Center Office of Inspector General, and the Illinois
Department of Human Services Office of Inspector General must all be dismissed. Out of an
overabundance of caution, these entities will be dismissed without prejudice.
Although Chester Mental Health Center is named as a defendant, the complaint makes
clear that Plaintiff is taking issue with the excessive force inflicted upon him by a group of staff
members, none of whom can be specifically identified at this time. Therefore, in framing Count
1, the Court has construed the allegations as being lodged against unidentified Chester Mental
Health Center staff. Nevertheless, until Plaintiff can identify at least one staff member involved
in the alleged assault, service of process cannot be completed. Therefore, Count 1 will be
dismissed without prejudice and Plaintiff will be afforded an opportunity to conduct discovery
and amend the complaint.
Identification of Unknown Defendants
When a “prisoner” plaintiff’s complaint states specific allegations describing conduct of
individual staff members sufficient to raise a constitutional claim, but the names of
those defendants are not known, the plaintiff should have the opportunity to engage in limited
discovery to ascertain the identity of those defendants. See Rodriguez v. Plymouth Ambulance
Serv., 577 F.3d 816, 832 (7th Cir. 2009). “Depending on the particular circumstances of the
case, the court may assist the plaintiff by providing counsel for the limited purpose of amending
the complaint; by ordering the named defendants to disclose the identities of unnamed officials

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involved; by allowing the case to proceed to discovery against high-level administrators with the
expectation that they will identify the officials personally responsible; by dismissing the
complaint without prejudice and providing a list of defects in the complaint; by ordering service
on all officers who were on duty during the incident in question; or by some other
means.” Donald v. Cook County Sheriff's Dept., 95 F.3d 548, 556 (7th Cir. 1996).
The Court is mindful of the Seventh Circuit’s admonition that where a prisoner plaintiff
is not in a position to adequately investigate in order to determine which individuals were
responsible for the violation of his constitutional rights, the district court may, under certain
circumstances, have a duty “to assist him, within reason, to make the necessary
investigation.” Santiago v. Walls, 599 F.3d 749, 763–64 (7th Cir. 2010) (quoting Billman v. Ind.
Dep't of Corr., 56 F.3d 785, 789–90 (7th Cir. 1995)). The Billman court noted that a prisoner’s
“initial inability to identify the injurers is not by itself a proper ground for the dismissal of the
suit. Dismissal would gratuitously prevent him from using the tools of pretrial discovery to
discover the defendants' identity.” Billman, 56 F.3d at 789.
For these reasons, Plaintiff Davis’s situation warrants immediate consideration of his
motion for appointment of counsel (Doc. 5).
Appointment of Counsel
According to Plaintiff’s motion for appointment of counsel (Doc. 5), he has made
multiple attempts to secure counsel, to no avail. Plaintiff also explains that he only has a high
school education.
The complaint is stated in a relatively articulate manner.

Nevertheless, Plaintiff’s

apparent mental health issues, combined with his transfer from Chester Mental Health Center to
a jail in northern Illinois, create an unusual circumstance warranting the appointment of counsel.

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Counsel will be allotted a period of time within which to identify the relevant staff members and
amend the complaint accordingly. If the relevant staff members cannot be identified in the time
allotted, the case will be closed and judgment will be entered.
Disposition
As a preliminary matter, the Clerk of Court is DIRECTED to have the record more
accurately reflect that CHESTER MENTAL HEALTH CENTER STAFF as a Defendant.
IT IS HEREBY ORDERED that all claims regarding (1) the use of derogatory and/or
threatening language, and (2) the violation of state laws, regulations or policies are DISMISSED
with prejudice.
IT IS FURTHER ORDERED that the DEPARTMENT OF HUMAN SERVICES, the
CHESTER MENTAL HEALTH CENTER OFFICE OF INSPECTOR GENERAL, and the
ILLINOIS DEPARTMENT OF HUMAN SERVICES OFFICE OF INSPECTOR
GENERAL are all DISMISSED without prejudice.
IT IS FURTHER ORDERED that COUNT 1 against CHESTER MENTAL
HEALTH CENTER STAFF is DISMISSED without prejudice and with leave to amend.
IT IS FURTHER ORDERED that Plaintiff’s motion for the recruitment of counsel
(Doc. 5) is GRANTED. Accordingly, the Court APPOINTS Attorney CHRISTOPHER S.
IARIA, of the firm Freedman, Anselmo, Lindberg, 1807 W. Diehl Road, # 333, Naperville, IL
60563, to represent Plaintiff in this action in this Court only. The Amended Complaint SHALL
BE FILED on or before April 9, 2014). Failure to identify the relevant defendants and file an
Amended Complaint will result in the dismissal of the case and entry of judgment.
Attorney IARIA shall enter his appearance on or before February 9, 2014. Plaintiff’s
counsel is welcome to share responsibilities with an associate who is also admitted to practice in

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this district court. The Court will not accept any filings from Plaintiff individually while he
is represented by counsel, except a pleading that asks that he be allowed to have counsel
withdraw from representation. If counsel is allowed to withdraw at the request of Plaintiff, it is
unlikely the Court will appoint other counsel to represent him.
Because Plaintiff is proceeding in forma pauperis, if there is a monetary recovery in this
case (either by verdict or settlement), any unpaid out-of-pocket costs must be paid from the
proceeds. See SDIL-LR 3.1(c)(1). If there is no recovery in the case (or the costs exceed any
recovery), the Court has the discretion to reimburse expenses. The funds available for this
purpose are limited, and counsel should use the utmost care when incurring out-of-pocket costs.
In no event will funds be reimbursed if the expenditure is found to be without a proper basis. The
Court has no authority to pay attorney’s fees in this case.
IT IS SO ORDERED.
DATED: JANUARY 9, 2014
s/ J. Phil Gilbert
United States District Judge

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