Bentz et al v. Butler et al
Filing
36
ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Signed by Judge Nancy J. Rosenstengel on 8/24/2015. (tjk)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DAVID ROBERT BENTZ,
No. S03210,
BRETT SHARP,
No. N38007,
JESSE PEREZ,
No. R44289,
MARCOS GARCIA,
No. R63548,
ARMANDO GALLANDO, and
No. M32605,
JOHN LEE,
No. A15590,
Plaintiffs,
vs.
KIMBERLY BUTLER,
NURSE LANG,
MAJOR WESTFALL,
LT. JAMES BEST,
LT. EOVALDI,
LT. SAMUELS,
SGT. N. BEBOUT,
SGT. C. MAYER,
C/O JOSHUA BERNER,
C/O SHANE QUANDT,
C/O JASON REDNOUR,
C/O DONALD LINDENBERG,
C/O JARED PHILLIPS,
C/O MCMILLAN, and
UNKNOWN PARTIES,
Defendants.
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Case No. 14-cv-00996-NJR
MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Pursuant to 42 U.S.C. § 1983, this action was initiated in the name of six inmates at
Menard Correctional Center for deprivations of their constitutional rights relative to the
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conditions of their confinement in the North-2 unit. The original complaint (Doc. 1), which also
purported to be a proposed class action, was dismissed without prejudice (Doc. 15). The hazards
of joint litigation were highlighted, and the plaintiffs were given an opportunity to file an
amended complaint.
The amended complaint (Doc. 18) appeared to bear the signatures of all six plaintiffs:
David Robert Bentz, Brett Sharp, Jesse Perez, Marcos Garcia, Armando Gallando and John Lee.
In accordance with Boriboune v. Berge, 391 F.3d 852 (7th Cir. 2004), the Court again warned
the plaintiffs of the hazards of joint litigation and afforded them a chance to “opt out” and not
incur a filing fee (Doc. 22). The Court subsequently discerned, however, that Plaintiff Bentz had
signed the amended complaint on behalf of all six plaintiffs. Each plaintiff was sent a form to
execute if they, instead, wanted to “opt in,” adopting the complaint as their own and incurring a
filing fee (Doc. 28).
At this juncture, only David Robert Bentz and Jesse Perez have adopted the complaint
and moved to proceed in forma pauperis (see Docs. 2, 3, 31, 35). Accordingly, Brett Sharp,
Marcos Garcia, Armando Gallando, and John Lee shall be dismissed from this action without
prejudice. No filing fee will be assessed against them, and their motions for pauper status (Docs.
4, 5, 12, 14) will be denied as moot.
The amended complaint (Doc. 18) must now undergo preliminary review pursuant to
28 U.S.C. § 1915A. The Court is required to dismiss any portion of the pleading 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). Frivolousness is an objective standard that refers
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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. At this juncture, the factual allegations of
the pro se complaint are to be liberally construed. See Rodriguez v. Plymouth Ambulance Serv.,
577 F.3d 816, 821 (7th Cir. 2009).
The Amended Complaint
The amended complaint describes how the defendant prison officials, individually and in
conspiracy, in their individual and official capacities, do not take adequate measures to ensure
the health and safety of Plaintiffs Bentz and Perez, and the members of the proposed class, when
temperatures in the North-2 unit at Menard rise above a heat index of 90 degrees. According to
Plaintiffs, the high heat and humidity is not merely uncomfortable, it poses a scientifically
recognized health risk, and an even greater danger to those with certain preexisting health
conditions (e.g., Perez, who has asthma (see Doc. 18, p. 7, ¶ 32)). 1 There are few or no fans
circulating air through the unit as a whole, and it is difficult, if not impossible for inmates to
purchase personal fans from the commissary. Ice and water are not regularly available in
sufficient quantities and intervals. Routine wellness checks are not made during these periods.
According to Plaintiffs, these practices have resulted in inmate deaths.
1
Bentz describes himself as being at heightened risk because he is “elderly” (Doc. 18, p. 7, ¶ 32), but
according to the Illinois Department of Corrections, he is only 40 years old. See
https://www.illinois.gov/idoc/Offender/Pages/InmateSearch.aspx (last accessed Aug. 20, 2015). Bentz’s
acts of signing other plaintiffs’ names, and now mischaracterizing himself as “elderly,” creates a pattern
of behavior that does not bode well for this case. Plaintiffs Bentz and Perez are advised that dishonesty
during the course of litigation may result in the dismissal of this action with prejudice, as well as the
imposition of sanctions.
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Plaintiffs take aim at the systemic conditions (the result of administrative policies and
practices), Defendants’ deliberate indifference to their health and safety, and Defendants’
negligence. They further claim that Defendants have acted in retaliation for Plaintiffs’ grievances
and lawsuits, and because of Plaintiffs’ crimes of conviction.
The fourteen named defendants include Warden Kimberly Butler, six supervisory
officers, six correctional officers, and a nurse. It is also clear that Plaintiffs want to sue a variety
of additional unknown staff members; however, they are not sufficiently identified in the
narrative of the amended complaint to enable the Court to discern which “John Doe” defendant
did what.
Nominal, compensatory, and punitive damages are sought, as well as injunctive relief in a
wide variety of forms.
Based on the allegations in the amended complaint, the Court finds it convenient to
divide the pro se action into the following broad counts. The parties and the Court will use these
designations in all future pleadings and orders, unless otherwise directed by a judicial officer of
this Court. The designation of these counts does not constitute an opinion as to their merit.
Count 1: Since the summer of 2014 (in an ongoing violation), Defendants,
individually and/or in conspiracy, by their acts and their failure to
cure the conditions of confinement, endangered Plaintiffs’ health
and safety whenever the heat index exceeded 90 degrees, in
violation of the Eighth Amendment;
Count 2: Since the summer of 2014 (in an ongoing violation), Defendants,
individually and/or in conspiracy, by their acts and their failure to
cure the conditions of confinement, negligently endangered
Plaintiffs’ health and safety whenever the heat index exceeded 90
degrees, in violation of Illinois common law; and
Count 3: Since the summer of 2014 (in an ongoing violation), Defendants,
individually and/or in conspiracy, have by their acts and their
failure to cure the conditions of confinement, retaliated against
Plaintiffs in violation of the First Amendment.
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Discussion
Perez v. Fenoglio, 792 F.3d 768 (7th Cir. 2015), serves as a reminder of the liberal notice
pleading standard (see FED.R.CIV.P. 8(A)), and that at this early stage, and in consideration of the
fact that Plaintiffs are proceeding pro se, the Court must construe the pleadings liberally, take the
allegations in the amended complaint as true, and draw all reasonable inferences in Plaintiffs’
favor. Id. (citing Smith v. Knox Cnty. Jail, 666 F.3d 1037, 1039 (7th Cir. 2012); Arnett v.
Webster, 658 F.3d 742, 751 (7th Cir. 2011)).
Unknown Parties
In apparent anticipation of proceeding as a class action, Plaintiffs have offered an overarching narrative relative to every prisoner in the North-2 unit, although they have sufficiently
linked themselves individually to the allegations for purposes of passing threshold review. The
involvement of each of the fourteen named defendants also has been sufficiently pleaded. With
that said, no claims have been sufficiently stated against the unidentified defendants. More to the
point, Plaintiffs assert that others were involved, but without designating them as John Doe #1,”
“John Doe #2,” etc., and clearly pleading what each of them did, no claim is stated.
Consequently the unidentified defendants will be dismissed; dismissal shall be without prejudice,
leaving open the possibility of further amending the complaint.
Count 1
Relative to Count 1, the Eighth Amendment to the United States Constitution protects
prisoners from being subjected to cruel and unusual punishment. U.S.CONST., amend. VIII. See
also Berry v. Peterman, 604 F.3d 435, 439 (7th Cir. 2010). Eighth Amendment protection
extends to conditions of confinement that pose a substantial risk of serious harm, including
health and safety. See Estate of Miller, ex rel. Bertram v. Tobiasz, 680 F.3d 984 (7th Cir. 2012).
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There is precedent for finding that, depending on ventilation concerns and the length of time
involved, a heat index over 90 degrees can pose an objectively serious threat to health and safety
if ameliorative steps are not taken, such as providing fans and ice water. See Gates v. Cook, 376
F.3d 323, 334 (5th Cir, 2004). See also, e.g, White v. Monohan, 326 F. App’x 385, 387-88 (7th
Cir. 2009) (recognizing that excessive heat and poor ventilation fall under the ambit of the
Eighth Amendment); Sanders v. Sheahan, 198 F.3d 626, 628–29 (7th Cir. 1999) (reversing
district court’s dismissal of prisoner’s complaint and holding that prisoner had stated a claim
based on excessive heat and poor ventilation); Dixon v. Godinez, 114 F.3d 640, 643 (7th Cir.
1997) (“[c]old temperatures need not imminently threaten inmates’ health to violate the Eighth
Amendment”); Del Raine v. Williford, 32 F.3d 1024, 1035 (7th Cir. 1994) (holding inmate need
not allege frostbite or hypothermia to establish that cold temperatures endangered inmate’s
health).
Prison officials can also violate the Eighth Amendment’s proscription against cruel and
unusual punishment when their conduct demonstrates “deliberate indifference to serious medical
needs of prisoners.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). Such claims are intertwined
with the claims about the conditions of confinement claims. Consequently, the Court has not
parsed this “omnibus” Eighth Amendment claim further. Various theories of Eighth Amendment
liability will surely be teased out as the case progresses.
Count 1 shall proceed against all fourteen defendants.
Count 2
Count 2 is premised upon the same factual allegations that underlie Count 1. The Court
may exert supplemental jurisdiction over state law claims—such as Count 2—that are “so related
to claims in the action within such original jurisdiction that they form part of the same case or
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controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367. Therefore,
Count 2 shall also be allowed to proceed.
Count 3
Count 3 stems from the allegation that Defendants acted in retaliation for Plaintiffs filing
grievances and lawsuits, as well as their crimes of conviction. “An act taken in retaliation for the
exercise of a constitutionally protected right violates the Constitution.” DeWalt v. Carter, 224
F.3d 607, 618 (7th Cir. 2000). “Otherwise permissible actions by prison officials can become
impermissible if done for retaliatory reasons.” Zimmerman v. Tribble, 226 F.3d 568, 573 (7th
Cir. 2000). In order to state a claim for retaliation for exercising one’s First Amendment right, a
plaintiff must demonstrate that: “(1) his speech was constitutionally protected; (2) he has
suffered a deprivation likely to deter free speech; and (3) his speech was at least a motivating
factor” behind the retaliatory actions. Massey v. Johnson, 457 F.3d 711, 716 (7th Cir. 2006).
Filing a lawsuit is activity protected under the First Amendment. Lewis v. Casey, 518
U.S. 343, 350 (1996); Lekas v. Briley, 405 F.3d 602, 614 (7th Cir. 2005). A non-frivolous
grievance also triggers protection. Perez v. Fenoglio, 792 F.3d 768 (7th Cir. 2015) (citing
Thomson v. Washington, 362 F.3d 969, 971 (7th Cir. 2004)). The nature of one’s criminal
conviction, although possibly a motivating factor, does not trigger First Amendment protection.
Thus, Count 3 states a colorable claim under the notice pleading standard, but only with respect
to Plaintiffs’ grievances and law suits. See Gomez v. Randle, 680 F.3d 859, 866-67 (7th Cir.
2012); McElroy v. Lopac, 403 F.3d 855, 858 (7th Cir. 2005).
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Implied Motions
Class Certification
Insofar as the amended complaint indicates that Plaintiffs desire to move for class
certification, they must file a motion to that effect, addressing the considerations detailed in
Federal Rule of Civil Procedure 23.
Preliminary Injunction
The amended complaint suggests that Plaintiffs may desire a preliminary injunction. If
so, a motion should be filed in accordance with Federal Rule of Civil Procedure 65(a).
Motions for Pauper Status
Plaintiffs’ individual motions for leave to proceed in forma pauperis (Docs. 2, 3) will be
decided by separate order.
Disposition
IT IS HEREBY ORDERED that Plaintiffs BRETT SHARP, MARCOS GARCIA,
ARMANDO GALLANDO, and JOHN LEE are DISMISSED without prejudice. No filing
fee will be assessed against them, and their motions for pauper status (Docs. 4, 5, 12, 14) are
DENIED as moot.
IT IS FURTHER ORDERED that “UNKNOWN PARTIES” are DISMISSED
without prejudice as defendants to this action.
IT IS FURTHER ORDERED that COUNTS 1, 2, and 3 shall PROCEED against
Defendants KIMBERLY BUTLER, NURSE LANG, MAJ. WESTFALL, LT. JAMES
BEST, LT. EOVALDI, LT. SAMUELS, SGT. N. BEBOUT, SGT. C. MAYER, JOSHUA
BERNER, SHANE QUANDT, JASON REDNOUR, DONALD LINDENBERG, JARED
PHILLIPS, and C/O MCMILLAN.
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The Clerk of Court shall prepare for Defendants KIMBERLY BUTLER, NURSE
LANG, MAJ. WESTFALL, LT. JAMES BEST, LT. EOVALDI, LT. SAMUELS, SGT. N.
BEBOUT, SGT. C. MAYER, JOSHUA BERNER, SHANE QUANDT, JASON
REDNOUR, DONALD LINDENBERG, JARED PHILLIPS, and C/O MCMILLAN:
(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.
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
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
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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 United States
Magistrate Judge Donald G. Wilkerson for further pre-trial proceedings.
Further, this entire matter shall be REFERRED to a United States Magistrate 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 Section 1915, Plaintiff will be required to pay the full amount of the costs, notwithstanding
that his application to proceed in forma pauperis may have 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.
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
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for want of prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: August 24, 2015
___________________________
NANCY J. ROSENSTENGEL
United States District Judge
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