Turner, v. Godinez, et al.

Filing 12

IT IS HEREBY ORDERED that the complaint (Doc. 1) is DISMISSED without prejudice; accordingly, Defendants SALVADORE A. GODINEZ and JASON GAMETT are DISMISSED without prejudice. IT IS FURTHER ORDERED that on or before October 15, 2014, Plaintiff shall file an amended complaint, or this action will be dismissed with prejudice and Plaintiff will be assessed a strike for purposes of 28 U.S.C. § 1915(g). (Amended Pleadings due by 10/15/2014). Signed by Judge J. Phil Gilbert on 9/24/2014. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MICHAEL TURNER,
Plaintiff,
vs.
SALVADOR A. GODINEZ, and
JASON GAMMETT,
Defendants.

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Case No. 14-cv-00945-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff Michael Turner initiated this civil rights pursuant to 42 U.S.C. § 1983 while he
was an inmate housed at Robinson Correctional Center. He has recently been paroled and his
address of record is in Hazelcrest, Illinois.
Turner contends that his constitutional rights were violated when he was issued a “parole
violation warrant” regarding his failure to secure a host cite where he could reside upon release
on parole, and his preliminary hearing was not held for approximately 47 days. Turner brings
suit against Salvadore A. Godinez, Director the Illinois Department of Corrections, and Jason
Gamett, Chief of Parole Operations for the Department. He seeks only compensatory damages.
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–

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(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). 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. As pleaded, the complaint fails
to state claim upon which relief can be granted.
Analysis
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). Monetary damages are an available remedy for individual
capacity claims. See, e.g., Burd v. Sessler, 702 F.3d 429, 432 (7th Cir. 2012). Defendants
Godinez and Gamett are named in the caption of the complaint, but the narrative portion of the
complaint makes no mention of either defendant. 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).
The doctrine of respondeat superior—supervisor liability—is not applicable to Section
1983 actions. Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001) (quoting Chavez v. Ill.
State Police, 251 F.3d 612, 651 (7th Cir. 2001)). Thus, the mere fact that each defendant
occupies a supervisory position is insufficient for liability to attach. Allegations that senior
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officials were personally responsible for creating the policies, practices and customs that caused
a constitutional deprivation can, however, suffice to demonstrate personal involvement for
purposes of Section 1983 liability. See Doyle v. Camelot Care Centers, Inc., 305 F.3d 603, 615
(7th Cir. 2002). However, no practice or policy is alleged that could link Defendants to the
failure to timely afford Plaintiff a hearing. Attached to the complaint is what appears to be a
consent decree or settlement agreement affording those taken into custody and housed at the
Cook County Jail a preliminary hearing within ten days after arrest on a parole violation warrant
(see Doc.1, pp. 13-16). That decree or agreement has no apparent bearing on Plaintiff’ situation
at Robinson Correctional Center, nor does it reflect a practice or policy attributable to
Defendants.
No individual capacity claim has been sufficiently pleaded, and any official capacity
claim fails because the only remedy sought is monetary damages. Official capacity suits are a
way of suing the governmental entity of which the defendant official is an agent. Kentucky v.
Graham, 473 U.S. 159, 166 (1985). Liability stems from the execution of an official policy,
practice or custom by a government official. See, e.g., Sow v. Fortville Police Dep't, 636 F.3d
293, 300 (7th Cir.2011) (citing Graham, 473 U.S. at 165–66).

However, the Eleventh

Amendment precludes an award of monetary damages in an official capacity suit, including
punitive damages, leaving declaratory and injunctive relief as possible remedies. See 42 U.S.C.
§ 1981a(b)(1); Minix v. Canarecci, 597 F.3d 824, 830 (7th Cir. 2010).
The Court need not delve further into the merits of Plaintiff Turner’s constitutional
claims.

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Recruitment of Counsel
Plaintiff seeks recruitment of counsel (Doc. 4). He contends that being in prison severely
impedes his ability to litigate this case. He also contends that an attorney would better litigate
his case. According to Plaintiff, he has unsuccessfully sought representation, as demonstrated by
attached letters from carious attorneys (see Doc. 4, pp. 3-8).
There is no constitutional or statutory right to counsel in federal civil cases. Romanelli v.
Suliene, 615 F.3d 847, 851 (7th Cir. 2010); see also Johnson v. Doughty, 433 F.3d 1001, 1006
(7th Cir. 2006). Nevertheless, the district court has discretion under 28 U.S.C. § 1915(e)(1) to
recruit counsel for an indigent litigant. Ray v. Wexford Health Sources, Inc., 706 F.3d 864, 866–
67 (7th Cir. 2013).
When a pro se litigant submits a request for assistance of counsel, the Court must first
consider whether the indigent plaintiff has made reasonable attempts to secure counsel on his
own. Navejar v. Iyiola, 718 F.3d 692, 696 (7th Cir. 2013) (citing Pruitt v. Mote, 503 F.3d 647,
654 (7th Cir. 2007) (en banc)). If so, the Court must examine “whether the difficulty of the
case—factually and legally—exceeds the particular plaintiff’s capacity as a layperson to
coherently present it.” Navejar, 718 F.3d at 696 (quoting Pruitt, 503 F.3d at 655). “The
question ... is whether the plaintiff appears competent to litigate his own claims, given their
degree of difficulty, and this includes the tasks that normally attend litigation: evidence
gathering, preparing and responding to motions and other court filings, and trial.” Pruitt, 503
F.3d at 655. The Court also considers such factors as the plaintiff’s “literacy, communication
skills, education level, and litigation experience.” Id.
As a preliminary matter, the documentation attached as evidence of Plaintiff’s efforts to
secure counsel is misleading, to say the least. His letter seeking representation refers to an
ongoing case in which defendants are represented by counsel—obviously not this newly filed
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case. The first letter of rejection has had the month and day removed from the dateline, and the
attorney refers to a February 21, 2014 request for assistance. The events at issue in this case did
not even occur until March 2014. Another rejection letter is dated February 6, 2014—again, well
before the events at issue in this case.
In any event, the complaint is well written, although insufficient as drafted to state a
claim. The errors noted in this order are of the sort that can be cured easily, and there is nothing
to indicate that Plaintiff cannot draft the amended complaint and proceed pro se, particularly
now that he has been released from prison. The claims are not legally difficult, and being out of
prison should not make the discovery process any more onerous in this particular situation. For
these reasons, the recruitment of counsel is not warranted. The Court, however, will remain
open to recruiting counsel.
Disposition
IT IS HEREBY ORDERED that, for the reasons stated, the complaint (Doc. 1) is
DISMISSED without prejudice; accordingly, Defendants SALVADORE A. GODINEZ and
JASON GAMETT are DISMISSED without prejudice.
IT IS FURTHER ORDERED that on or before October 15, 2014, Plaintiff shall file an
amended complaint, or this action will be dismissed with prejudice and Plaintiff will be assessed
a “strike” for purposes of 28 U.S.C. § 1915(g).

Any amended complaint must undergo

preliminary review pursuant to 28 U.S.C. § 1915A.
IT IS FURTHER ORDERED that Plaintiff’s motion for counsel (Doc. 4) is DENIED
without prejudice.
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

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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: September 24, 2014
s/J. Phil Gilbert
United States District Judge

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