Lindsey v. IDOC et al

Filing 9

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. Signed by Chief Judge Michael J. Reagan on 7/22/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
BRANDON A. LINDSEY, # M-38201,
Plaintiff,
vs.
RANDY DAVIS,
LARUE LOVE,
and ROBERT HILLIARD,
Defendants.

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Case No. 14-cv-1247-MJR

MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
This matter is before the Court for a preliminary review of the First Amended
Complaint (Doc. 8), pursuant to 28 U.S.C. § 1915A. Plaintiff filed the amended pleading at the
direction of the Court, after his original complaint was dismissed without prejudice for failure to
state a claim (Doc. 7). Under § 1915A, the Court is required to review 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.
Plaintiff’s claims arose during his incarceration at Vienna Correctional Center
(“Vienna”). He complains that Defendants have subjected him to unsanitary conditions of
confinement in violation of the Eighth Amendment. Specifically, he states that he arrived at
Vienna on August 9, 2013, and was placed in Building 19 (Doc. 8, p. 5). He was moved to
another unit on September 28, 2013, but was moved back to Building 19 on April 21, 2014, and
remains there. The conditions in Building 19 include infestation with rodents, spiders, and other
bugs. Plaintiff has awakened from sleep to find bugs crawling on him and in his hair. Windows

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near Plaintiff’s bunk are broken and have no screens; Plaintiff has to cover these windows with
cut up boxes to keep warm. The building has mold, pipes are rusted out, water drips from the
bathroom ceiling onto Plaintiff’s head, and the shower drain clogs so that he must stand in
“sewer water” full of bacteria and hair. Id. He is exposed to lead paint in the bathrooms and
stairwells. There are only four working toilets for 104 inmates in the unit. The building has
asbestos, which causes Plaintiff to fear for his health. His mattress is old, stained, and “rusted
out.” Id. The filthy conditions extend to the dining hall, where on September 14, 2014, the
cereal served to inmates contained bugs. The day room lacks sufficient seating, so inmates must
sit on boxes.
Plaintiff says that former warden Defendant Davis, current warden Defendant
Hilliard, and assistant warden Defendant Love, were all made aware of the living conditions in
Building 19, but have done nothing to correct the problems. Plaintiff’s grievances have been
denied and not taken seriously by the Defendants.
Plaintiff seeks money damages, as well as an order to close the building until all
repairs are made and require the prison to limit the number of inmates housed there to 925,
which he claims is the institution’s capacity (Doc. 8, p. 6).
Merits Review Pursuant to 28 U.S.C. § 1915A
In a case involving conditions of confinement in a prison, two elements are
required to establish a violation of the Eighth Amendment’s cruel and unusual punishments
clause. First, an objective element requires a showing that the conditions deny the inmate “the
minimal civilized measure of life’s necessities,” creating an excessive risk to the inmate’s health
or safety. Farmer v. Brennan, 511 U.S. 825, 834 (1994). The second requirement is a subjective
element – establishing a defendant’s culpable state of mind, which is deliberate indifference to a

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substantial risk of serious harm to the inmate from those conditions. Farmer, 511 U.S. at 837,
842.
Prison officials violate the Eighth Amendment when they show deliberate
indifference to adverse conditions that deprive inmates of adequate sanitation and the ability to
maintain personal hygiene. Budd v. Motley, 711 F.3d 840, 842 (7th Cir. 2013) (citing Farmer,
511 U.S. at 834; Rice ex rel. Rice v. Corr. Med. Servs., 675 F.3d 650, 664 (7th Cir. 2012); Gillis
v. Litscher, 468 F.3d 488 (7th Cir. 2006); Vinning-El v. Long, 482 F.3d 923, 924 (7th Cir.
2007)). The alleged vermin infestation of Plaintiff’s living area, especially when combined with
the other unhealthy and dangerous conditions prevailing in Building 19, may give rise to an
Eighth Amendment claim even if Plaintiff has not suffered specific physical harm. See Thomas
v. Illinois, 697 F.3d 612, 614-15 (7th Cir. 2012) (depending on severity, duration, nature of the
risk, and susceptibility of the inmate, prison conditions may violate the Eighth Amendment if
they caused either physical, psychological, or probabilistic harm). “[C]onditions of confinement,
even if not individually serious enough to work constitutional violations, may violate the
Constitution in combination when they have a ‘mutually enforcing effect that produces the
deprivation of a single, identifiable human need.’” Budd, 711 F.3d at 842 (citing Wilson v.
Seiter, 501 U.S. 294, 304 (1991); Gillis, 468 F.3d at 493; Murphy v. Walker, 51 F.3d 714, 721
(7th Cir. 1995)).
Unlike in the original complaint, Plaintiff has alleged in the First Amended
Complaint that he made each Defendant aware of the problems in Building 19, but they took no
steps to remedy these problems.

Therefore, Plaintiff will be allowed to proceed with his

deliberate indifference claims against Defendants Davis, Love, and Hilliard. Further factual

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development will determine whether he can sustain his allegations that the Defendants knew
about the risks to Plaintiff’s health, yet failed to take appropriate remedial action.
In the original threshold order (Doc. 7), the Court dismissed Defendant Illinois
Department of Corrections (“IDOC”) from the action with prejudice. Nonetheless, Plaintiff
included the IDOC as a named Defendant in the caption of the First Amended Complaint. He
did not mention the IDOC elsewhere in the document. Plaintiff is REMINDED that the IDOC
as a separate entity is no longer a party to this case, and he should omit the former Defendant
IDOC from any future pleadings or motions he may file.
Pending Motion
Plaintiff’s motion for recruitment of counsel (Doc. 3) shall be referred to the
United States Magistrate Judge for disposition.
Disposition
The Clerk is DIRECTED to again TERMINATE the Illinois Department of
Corrections as a party to this case, according to the order (Doc. 7) that dismissed the IDOC with
prejudice.
The Clerk of Court shall prepare for Defendants DAVIS, LOVE, and
HILLIARD: (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

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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 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 Stephen C. Williams 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 United States Magistrate
Judge Williams 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,

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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. 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: July 22, 2015

s/ MICHAEL J. REAGAN
Chief Judge
United States District Court

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