Anduze v. Duncan et al

Filing 6

ORDER: DISMISSING all Defendants and the Complaint without prejudice; and DENYING without prejudice 3 Motion for Recruitment of Counsel filed by Alexander J Anduze. Deadline for filing an amended complaint is December 19, 2014. Signed by Judge Nancy J. Rosenstengel on 11/17/2014. (mmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ALEXANDER J. ANDUZE,
No. B88839,
Plaintiff,
vs.
STEVE DUNCAN,
R.D. MOORE,
LAURA CUNNINGHAM,
MS. NEW,
MS. DAVIS, and
MS. ARNOLD,
Defendants.

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Case No. 14-cv-01153-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff Alexander J. Anduze, an inmate in Lawrence Correctional Center, brings this
action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983, based on how
prison officials responded to two suicide attempts by Plaintiff’s cellmate and to Plaintiff’s
exposure to bloodborne pathogens.
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.
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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. 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 Complaint
According to the complaint, in July 2014, Plaintiff’s cellmate attempted suicide with a
razorblade. Blood covered the cell, as well as Plaintiff and his personal property. Plaintiff was
taken to the healthcare unit, but no blood tests were run to see if, for example, Plaintiff had been
exposed to HIV or hepatitis. Instead, a correctional officer escorted Plaintiff to a shower and
instructed him to wash the blood off his body—without giving Plaintiff any soap or other
disinfectant. Plaintiff submitted written requests to the healthcare unit and filed administrative
grievances seeking testing for bloodborne diseases, all to no avail.
Although Plaintiff wrote to the Placement Office asking that his cellmate not be returned
to their cell, in August 2014, the suicidal cellmate was again housed with Plaintiff. A few weeks
later, the cellmate again attempted suicide with a razorblade. After cutting his face and upper
body, the cellmate awakened Plaintiff. Because the cellmate was still holding the razorblade,
Plaintiff feared that his life was in danger, so he hit the panic alarm in the cell to summon help.
When Plaintiff jumped down from his bunk, he slipped on blood and fell to the floor. Covered in
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blood, Plaintiff again was taken to the health care unit and the whole scenario repeated itself. He
was not tested for bloodborne diseases; he was taken to a shower, but he was not given any soap.
When Plaintiff returned to his cell, the blood had not been cleaned up, so he was left to clean his
cell without any training or the proper solvents and protective equipment—exposing him to
bloodborne pathogens a third time. Plaintiff filed another grievance, but he received no response
from the grievance officer or Warden Duncan.
After these two suicide attempts, Plaintiff was diagnosed with post-traumatic stress
disorder (“PTSD”). Nevertheless, he has not received “proper regular treatment by a social
worker,” and “proper prescription medication.”
The complaint lists as defendants Warden Duncan, Assistant Warden Moore, Medical
Administrator Cunningham and three social workers, Ms. New, Ms. Davis, and Ms. Arnold.
Defendants are alleged to have been “deliberately indifferent” and “blatantly negligent.”
Plaintiff seeks compensatory damages and affirmative injunctive relief, including the provision
of “proper medication.”
Discussion
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). Prison
officials can 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). A medical condition need not be life-threatening to

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be serious; rather, it can be a condition that would result in further significant injury or
unnecessary and wanton infliction of pain if not treated. Gayton v. McCoy, 593 F.3d 610, 620
(7th Cir. 2010). Furthermore, prison officials have a duty to protect prisoners “from violence at
the hands of other inmates.” See Washington v. LaPorte County Sheriff's Dep't, 306 F.3d 515,
517 (7th Cir. 2002).
Negligence, even gross negligence, is insufficient for Eighth Amendment liability. See
Farmer v. Brennan, 511 U.S. 825, 835 (1994). Rather, the corrections official must have acted
with the equivalent of criminal recklessness. Id. at 836–37. Therefore, any and all claims of
negligence fail.
As a general matter, however, the complaint sufficiently pleads Eighth Amendment
claims regarding the failure to properly treat Plaintiff for exposure to bloodborne pathogens after
the two suicide attempts, exposing him to harm on multiple occasions, and failing to properly
treat his PTSD. At this early stage, the Court need not delve deeper into Plaintiff’s specific
circumstances and whether he actually faced a serious health risk.

See generally

http://www.cdc.gov/niosh/topics/bbp (indicating that blood-on-skin exposure can, depending on
the circumstances, pose virtually no health risk). However, that does not end the Court’s
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). The respondeat superior doctrine—supervisory liability—
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). Allegations that senior officials were personally responsible for

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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).
Warden Duncan, Assistant Warden Moore, Medical Administrator Cunningham, and
social workers Ms. New, Ms. Davis, and Ms. Arnold, are all named as defendants, but only
Warden Duncan is 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). Therefore, Assistant Warden Moore, Medical Administrator Cunningham, Ms.
New, Ms. Davis and Ms. Arnold will all be dismissed without prejudice.
In the complaint Plaintiff states, “On September 6th, 2014 I filed yet another grievance[;]
I received no response from the grievance officer, or Warden Steven Duncan.” (Doc. 1, p. 14).
Elsewhere in the complaint, relative to Plaintiff’s efforts to exhaust administrative remedies
before filing suit, he states that he filed multiple grievances but did not receive a reply within 30
days, as prescribed by Illinois law. There is no indication that the grievance was sent to Warden
Duncan, and only emergency grievances are routed directly to the warden of an institution;
otherwise, the warden is the last step in the institutional grievance process. See 20 Ill. Adm.
Code 504.830-504.840. Thus, the Court cannot reasonably infer that the warden received the
grievance. For these reasons, under the Twombly pleading standard, Plaintiff has failed to state a
claim against Warden Duncan. Duncan, like the other defendants, will be dismissed without
prejudice.
Plaintiff will be given an opportunity to file an amended complaint.

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Motion for Counsel
Because Plaintiff is being given an opportunity to file an amended complaint, the Court will
consider his motion for recruitment of counsel (Doc. 3). 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.
Plaintiff gives no indication that he has attempted to secure counsel. Rather, he merely
asserts that he is financially unable to afford to retain an attorney and that he lacks the
knowledge to properly represent himself (see Doc. 3, p. 2). Furthermore, as demonstrated by the
complaint, Plaintiff can articulately and adequately explain his claim factually and legally.
Plaintiff’s motion indicates that he has some college education, and he is not currently on any
medication. Although some medical matters are at issue, it is not readily apparent that special
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medical knowledge is necessary. See Henderson v. Ghosh, 755 F.3d 559, 564-66 (7th Cir. 2014)
(assessing an inmate’s ability to prosecute a medical claim). Therefore, Plaintiff’s motion for
recruitment of counsel (Doc. 3) will be denied without prejudice.
Disposition
IT IS HEREBY ORDERED that, for the reasons stated, all Defendants and the
complaint (Doc. 1) are DISMISSED without prejudice.
IT IS FURTHER ORDERED that on or before December 19, 2014, Plaintiff shall file
an amended complaint. If a viable amended complaint is not filed, this action will be dismissed
with prejudice and a strike will be assessed for purposes of 28 U.SC. § 1915(g).
IT IS FURTHER ORDERED that Plaintiff’s motion for recruitment of counsel (Doc. 3)
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
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: November 17, 2014

______________________________
NANCY J. ROSENSTENGEL
United States District Judge

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