Hoskins v. Mezo et al

Filing 7

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson, denying 2 MOTION for Preliminary Injunction filed by Robert Hoskins.. Signed by Judge Nancy J. Rosenstengel on 1/9/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ROBERT HOSKINS, #B-02683,
Plaintiff,
vs.
C/O MEZO, C/O FITZGERALD,
SGT. WILBURN, SUSAN HILL, and
WARDEN BUTLER,
Defendants.

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Case No. 14-cv-1427-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff Robert Hoskins, currently an inmate at Menard Correctional Center (“Menard”),
brings this pro se civil rights action pursuant to 42 U.S.C. § 1983.

Plaintiff claims that

Defendants have violated his rights by subjecting him to unhealthy and harmful conditions of
confinement and retaliating against him for complaining. In his prayer for relief, Plaintiff
requests compensatory and punitive damages, as well as preliminary and permanent injunctive
relief. (Doc. 1, p. 8). Plaintiff’s request for immediate injunctive relief will be considered in
conjunction with preliminary review of the complaint pursuant to 28 U.S.C. § 1915A.
Merits Review Pursuant to 28 U.S.C. § 1915
Under § 1915A, the Court is required to promptly screen prisoner complaints to filter out
nonmeritorious claims. 28 U.S.C. § 1915A(a). The Court is required to dismiss any portion of
the complaint 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).

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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). 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 the same time, 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
Plaintiff was transferred from Pinckneyville Correctional Center to the North-2
Segregation Unit at Menard on June 23, 2014. (Doc. 1, ¶ 13). On June 25, 2014, during the 7-3
shift, Defendant C/O Mezo moved Plaintiff from cell 7-22 to cell 2-21. Id. at ¶ 14. Defendant
Mezo knew that cell 2-21 was unsanitary -- feces and blood were smeared all over the walls,
toilet, and pillow, trash was strewn about the cell, and there were food trays infested with bugs
under the bed. Id. at ¶¶ 14-15. Plaintiff asked Defendant Mezo for cleaning supplies. Mezo
refused stating that he did not have time that day, but maybe he would have time the following
day. Id. at ¶ 14.
Later that same day, during the 3-11 shift, Plaintiff asked Defendant C/O Fitzgerald for
cleaning supplies and for help disposing of the trash in the cell. Id. at ¶ 15. Defendant Fitzgerald
refused. Id. During the 11-7 shift, Plaintiff again requested cleaning supplies – this time from
Defendant Sgt. Wilburn. Id. at ¶ 16. Defendant Wilburn also refused. Id. Defendant Wilburn
commented that Plaintiff must have made somebody mad and that it was the responsibility of the
7-3 shift staff to provide cleaning supplies. Id.

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Despite his repeated requests, Plaintiff never received cleaning or hygiene supplies over
the next two days. Id. at ¶ 17. On June 27, 2014, Plaintiff spoke to Defendant Hill, a counselor
assigned to the unit, about the unsanitary conditions and his inability to procure cleaning
supplies. Id. Defendant Hill told Plaintiff to stop his crying. Id.
Next, Plaintiff filed grievances against the correctional officers who denied him cleaning
supplies and wrote letters to Defendant Butler (head warden at Menard) and the Director of the
Illinois Department of Corrections. Id. at ¶ 18. Plaintiff informed Defendant Butler and the
director about how the unsanitary conditions were affecting his health. Id. Plaintiff claims that
Defendant Butler failed to take corrective measures, despite being ordered to do so by the
Director. Id. at ¶ 19. Plaintiff also asserts that Defendant Butler has “known for years” that the
North-2 Segregation Unite is unsafe and poses a “substantial risk of imminent personal injury
and/or death” to inmates housed there. Id. at ¶ 23.
Plaintiff maintains that the unsanitary conditions and the poor ventilation in the cell have
caused him to have hay fever, watering eyes, difficulty breathing, facial pressure, headaches, and
the loss of sight in his right eye. Id.
Plaintiff further asserts that Defendant Hill, a counselor assigned to the unit, retaliated
against Plaintiff after he filed a grievance against her and others for refusing to address the
unsanitary conditions in his cell. In retaliation for complaining, Plaintiff alleges that Defendant
Hill refused to process Plaintiff’s grievances in a timely manner. Id.
Plaintiff alleges that his health continues to deteriorate. Id. at ¶ 23. He concedes that he
did receive “late treatment,” but he maintains that he is “no longer healthy” after being housing
in segregation at Menard. Id.

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It is unclear when exactly Plaintiff received cleaning supplies and/or help with disposing
of unsanitary items in his cell. But the complaint does not suggest that the unsanitary conditions
are ongoing – only the health problems related to the conditions. The complaint only mentions
the dates in late June 2014; therefore, the Court assumes that Plaintiff’s request for cleaning
supplies was addressed thereafter.
Discussion
Accepting Plaintiff’s allegations as true, as the Court must do at this preliminary stage,
the Court finds that the complaint sets forth an actionable Eighth Amendment conditions of
confinement claim (Count 1) against Defendants Mezo, Fitzgerald, Wilburn, Hill, and Butler and
a First Amendment retaliation claim (Count 2) against Defendant Hill.
Count 1:

Conditions of confinement claim

The Eighth Amendment prohibits cruel and unusual punishment and has been a means of
improving prison conditions that were constitutionally unacceptable. See, e.g., Robinson v.
California, 370 U.S. 660, 666 (1962); Sellers v. Henman, 41 F.3d 1100, 1102 (7th Cir. 1994). In
order to prevail on a claim attacking the conditions of confinement, a plaintiff must allege facts
that, if true, would satisfy the objective and subjective components applicable to all Eighth
Amendment claims. McNeil v. Lane, 16 F.3d 123, 124 (7th Cir. 1994); see also Wilson v. Seiter,
501 U.S. 294, 302 (1991).

The objective analysis examines whether the conditions of

confinement exceeded the contemporary bounds of decency of a mature civilized society. Id.
The subjective component of unconstitutional punishment is the intent with which the acts or
practices constituting the alleged punishment are inflicted. Jackson v. Duckworth, 955 F.2d 21,
22 (7th Cir. 1992). The subjective component requires that a prison official had a sufficiently
culpable state of mind. Wilson, 501 U.S. at 298; see also McNeil v. Lane, 16 F.3d 123, 124 (7th

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Cir. 1994).
In conditions of confinement cases, the relevant state of mind is deliberate indifference to
inmate health or safety; the official must be aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists, and he also must draw the inference. See,
e.g., Farmer v. Brennan, 511 U.S. 825, 837 (1994); Wilson, 501 U.S. at 303; Estelle v. Gamble,
429 U.S. 97, 104 (1976); DelRaine v. Williford, 32 F.3d 1024, 1032 (7th Cir. 1994). The
deliberate indifference standard is satisfied if the plaintiff shows that the prison official acted or
failed to act despite the official’s knowledge of a substantial risk of serious harm. Farmer, 511
U.S. at 842. A failure of prison officials to act in such circumstances suggests that the officials
actually want the prisoner to suffer the harm. Jackson v. Duckworth, 955 F.2d 21, 22 (7th Cir.
1992).
Plaintiff alleges that Defendant Mezo placed him in a cell that he knew was unsanitary
and then refused to provide Plaintiff the cleaning supplies he needed. Plaintiff contends that
Defendants Fitzgerald, Wilburn, Hill, and Butler were all informed about the filthy cell
conditions, but that they too refused to address the unconstitutional conditions. Jail officials
violate the Eighth Amendment when they show deliberate indifference to adverse conditions that
deny “the minimal civilized measure of life’s necessities,” including “adequate sanitation and
personal hygiene items.” Budd v. Motley, 711 F.3d 840, 842 (7th Cir. 2013) (citing Farmer v.
Brennan, 511 U.S. 825, 834 (1994) (citation omitted).
In this case, Plaintiff has identified unsanitary cell conditions that support a claim for
unconstitutional conditions of confinement. See e.g., Johnson v. Pelker, 891 F.2d 136, 139-40
(7th Cir. 1989) (finding that placing a prisoner in a cell for three days in which feces are smeared
on the walls and there is no running water while ignoring his requests for cleaning supplies may

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violate the Eighth Amendment). See also Vinning-El v. Long, 482 F.3d 923, 924 (7th Cir. 2007))
(collecting cases).
Further, the complaint alleges that Defendants are liable for the unconstitutional
conditions because they were personally made aware of the conditions but failed to correct any
of the problems. At this juncture, more facts are needed to determine whether each Defendant
acted with the requisite intent. Accordingly, Plaintiff shall be allowed to proceed with his
damages claim of unconstitutional conditions of confinement (Count 1) against Defendants
Mezo, Fitzgerald, Wilburn, Hill, and Butler, in their individual capacities.
Plaintiff also seeks injunctive relief. Typically, in a claim for injunctive relief, the
government official who is responsible for carrying out the requested relief would be named as a
defendant in his or her official capacity. See Gonzalez v. Feinerman, 663 F.3d 311, 315 (7th Cir.
2011). In the context of prison litigation, the official is usually the warden of the institution
where the inmate is incarcerated.

Accordingly, Defendant Butler shall also remain as a

defendant in Count 1, in her official capacity as warden of Menard, for purposes of injunctive
relief.
Count 2:

First Amendment Retaliation Claim

Prison officials may not retaliate against inmates for filing grievances or otherwise
complaining about the conditions of their confinement. See, e.g., Gomez v. Randle, 680 F.3d
859, 866 (7th Cir. 2012); Walker v. Thompson, 288 F.3d 1005 (7th Cir. 2002); DeWalt v. Carter,
224 F.3d 607 (7th Cir. 2000). To state a claim of retaliation “[a]ll that need be specified is the
bare minimum facts necessary to put the defendant on notice of the claim so that he can file an
answer.” Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002).

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Plaintiff asserts that Defendant Susan Hill, a counselor on the segregation unit at Menard,
retaliated against him after he filed a grievance claiming that Hill had refused to address the
unsanitary conditions in his cell. In retaliation, Plaintiff claims that Defendant Hill refused to
process Plaintiff’s grievances against other Defendants in a timely manner.
Even if these allegations would not be actionable in and of themselves, if the acts were
taken in retaliation for the exercise of a constitutionally protected right, then they are actionable
under § 1983. See Bridges v. Gilbert, 557 F.3d 541, 552 (7th Cir. 2009) (discussing Howland v.
Kilquist, 833 F.2d 639, 644 (7th Cir. 1987) (“[A]n act in retaliation for the exercise of a
constitutionally protected right is actionable under Section 1983 even if the act, when taken for
different reasons, would have been proper.”)).
An inmate has a First Amendment right to file grievances about the conditions of his
confinement. See Gomez v. Randle, 680 F.3d 859, 866 (7th Cir. 2012). At issue here is whether
Plaintiff experienced an adverse action that would likely deter First Amendment activity in the
future, and if the First Amendment activity was “at least a motivating factor” in Defendant Hill’s
decision to delay processing Plaintiff’s grievances. Bridges v. Gilbert, 557 F.3d 541, 551 (7th
Cir. 2009). This is a question that cannot be resolved at the pleadings stage of this case. Thus,
Plaintiff may proceed on his retaliation claim (Count 2) against Defendant Hill at this time.
In summary, the Court finds that the complaint sets forth an actionable Eighth
Amendment conditions of confinement claim (Count 1) against Defendants Mezo, Fitzgerald,
Wilburn, Hill, and Butler and a First Amendment retaliation claim (Count 2) against Defendant
Hill. Defendant Butler shall also remain as a defendant, in her official capacity as warden of
Menard, for purposes of injunctive relief on Count 1.

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Request for Preliminary Injunctive Relief
In his prayer for relief, Plaintiff requests monetary damages, as well as a preliminary and
permanent injunction “ordering Defendants to stop all the wrong doing to cause health injury.”
Id. at ¶¶ 42-44. Plaintiff makes no other mention of a preliminary injunction throughout the
body of his complaint, nor does he file a separate motion or documentation in support of his
request for immediate injunctive relief.
The United States Supreme Court has emphasized that a “preliminary injunction is an
extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear
showing, carries the burden of persuasion.” Christian Legal Soc’y v. Walker, 453 F.3d 853, 870
(7th Cir. 2006) (quoting Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (emphasis in
original)). In considering whether to grant injunctive relief, a district court must weigh the
relative strengths and weaknesses of a plaintiff’s claims in light of a five-part test that has long
been part of the Seventh Circuit’s jurisprudence.
Specifically, a plaintiff must establish: (1) that there is a reasonable or substantial
likelihood that he would succeed on the merits; (2) that there is no adequate remedy at law;
(3) that absent an injunction, he will suffer irreparable harm; (4) that the irreparable harm
suffered by plaintiff in the absence of the injunctive relief will outweigh the irreparable harm that
defendants will endure were the injunction granted; and (5) that the public interest would be
served by an injunction. Teamsters Local Unions Nos. 75 and 200 v. Barry Trucking, 176 F.3d
1004, 1011 (7th Cir. 1999); Judge v. Quinn, 612 F.3d 537, 546 (7th Cir. 2010); Pro’s Sports Bar
& Grill, Inc. v. City of Country Club Hills, 589 F.3d 865, 872-73 (7th Cir. 2009).
It is unclear from the complaint whether the conditions Plaintiff complains about are
ongoing. Plaintiff describes the unsanitary conditions in his cell and his attempts to obtain

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cleaning supplies, but only with regard to June 2014. He has attached affidavits from other
inmates and they, too, focus on the events around June 2014. If, in fact, Plaintiff is requesting
immediate injunctive relief for conditions that have already been addressed, then the request for
injunctive relief as to those claims would be moot. Plaintiff does not offer facts suggesting that
the most egregious unsanitary conditions (i.e., a feces and blood-covered cell), which may have
warranted more immediate injunctive relief, are ongoing. Although Plaintiff asserts that his
health continues to worsen, he has provided no documentation in support of that allegation (other
than a note from a counselor regarding an upcoming doctor’s appointment). As such, without
expressing any opinion on the merits of any of Plaintiff’s other claims for relief, the Court is of
the opinion that a preliminary injunction should not be issued in this matter at this time.
Therefore, Plaintiff’s request for a preliminary injunction (Doc. 2) is DENIED.
If the conditions Plaintiff describes are indeed ongoing and he wishes to pursue more
immediate injunctive relief, he may do so in a separate motion. However, the motion should
specifically identify what Plaintiff seeks to enjoin and any relevant facts in support of the motion.
Pending Motion
Plaintiff’s motion for recruitment of counsel (Doc. 5) remains PENDING and shall be
referred to United States Magistrate Judge Wilkerson for a decision.

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Disposition
IT IS HEREBY ORDERED that Plaintiff’s Eighth Amendment conditions of
confinement claims (COUNT 1) against Defendants C/O MEZO, C/O FITZGERALD, SGT.
WILBURN, SUSAN HILL, and WARDEN BUTLER and his First Amendment retaliation
claim (COUNT 2) against Defendant HILL shall proceed.
IT IS FURTHER ORDERED that Defendant BUTLER shall remain in her official
capacity as WARDEN OF MENARD, for purposes of injunctive relief.
The Clerk of Court shall prepare for Defendants C/O MEZO, C/O FITZGERALD,
SGT. WILBURN, SUSAN HILL, and WARDEN BUTLER: (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

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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 Wilkerson for further pre-trial proceedings.
Further, this entire matter shall be REFERRED to United States Magistrate Judge
Wilkerson 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, even though 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

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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: January 9, 2015
______________________________
NANCY J. ROSENSTENGEL
United States District Judge

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