Hilliard et al v. Godinez et al

Filing 6

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. (Action due by 3/27/2015). Signed by Judge Nancy J. Rosenstengel on 2/25/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DEON D. HILLIARD (No. R63769) and
DENZEL L. HARRIS (No. M47960),
Plaintiffs,
vs.
S.A. GODINEZ, and
JAMES LUTH,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

Case No. 15-cv-05-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiffs Deon D. Hilliard and Denzel L. Harris, inmates in Vandalia Correctional Center
(“Vandalia”), bring this action for deprivations of their constitutional rights pursuant to
42 U.S.C. § 1983, based on the conditions of confinement at Vandalia. In accordance with
Boriboune v. Berge, 391 F.3d 852 (7th Cir. 2004), by order dated January 28, 2015, Hilliard and
Harris were informed that they each would have to pay a filing fee, warned about the hazards
associated with joint litigation, and given an opportunity to opt out of this action. Neither
plaintiff has opted out.
Although Hilliard and Harris are proceeding with the knowledge that they each are now
obligated to pay the $400 filing fee ($350 if pauper status is granted), neither of them has paid
the $400 fee or properly moved for leave to proceed as a pauper under 28 U.S.C. § 1915. See
generally Jones v. Assoc. of Flight Attendants-CWA, No. 14-1482, 2015 WL 400905 at *3 (7th
Cir. Jan. 30, 2015) (requiring either payment of the filing fee or a motion to proceed as a pauper).
The joint motion for leave to proceed in forma pauperis (Doc. 2) that was submitted along with

Page 1 of 9

the complaint is not signed by either inmate. Furthermore, neither of them has filed a certified
copy of their prison trust fund account statement, as required. Plaintiffs will be granted a brief
period of time within which to either pay the filing fees or file motions for pauper status
(accompanied by the required trust fund statements). In the interim, the Court will proceed with
the required preliminary review of the complaint, which is necessary whether the filing fees are
paid or pauper status is granted. See 28 U.S.C. §§ 1915(e)(2), 1915A. If at the expiration of the
prescribed deadline the fee issue has not been resolved relative to either plaintiff, that plaintiff
will be dismissed from this action without prejudice, and the full $400 filing fee will be collected
pursuant to the procedure set forth in Section 1915(b)(2).
The Complaint
Plaintiffs Hilliard and Harris contend that they and the other inmates at Vandalia
Correctional Center are being exposed to mold, mildew, dust, chipping paint, and asbestoscovered pipes. Harris sleeps beneath an old, rusty heater and poorly patched ceiling. Harris is
described as having a “skin irritation” caused by these conditions. Plaintiffs have purportedly
tried to contact Warden Luth to secure relief, to no avail. A grievance was also submitted,
requesting to speak to S.A. Godinez, Director of the Illinois Department of Corrections.
Plaintiffs ask the Court to “step in” relative to the conditions of their confinement; they
also request that they be transferred out of Vandalia Correctional Center. Harris and Hilliard
also pray that they be “justly compensated for being exposed to unhealthy[,] hazardous
conditions.”
Based on those allegations, the Court construes the complaint as asserting the following
overarching claim:
Count 1: Director Godinez and Warden Luth, individually and in their
official capacities, have subjected Plaintiff to unhealthy conditions
Page 2 of 9

of confinement that amount to “cruel and unusual punishment,”
in violation of the Eighth Amendment.
The complaint contains additional information regarding the prison law library being
closed, and Plaintiff Hilliard having “mental health problems.” The Court does not construe
those allegations as being a part of the “conditions of confinement” claim, but instead as bearing
some relation to Plaintiffs’ pro se status. Any intended claim based upon those facts should be
considered dismissed without prejudice.
Discussion
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.
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
Page 3 of 9

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 Eighth Amendment prohibits cruel and unusual punishment and is applicable to the
states through the Fourteenth Amendment. It 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). As the Supreme Court noted in
Rhodes v. Chapman, 452 U.S. 337, 346 (1981), the amendment reaches beyond barbarous
physical punishment to prohibit the unnecessary and wanton infliction of pain and punishment
grossly disproportionate to the severity of the crime. Id. (quoting Gregg v. Georgia, 428 U.S.
153, 173 (1976)). The Constitution also prohibits punishment that is totally without penological
justification. Gregg, 428 U.S. at 183.
Not all prison conditions trigger Eighth Amendment scrutiny—only deprivations of
basic human needs like food, medical care, sanitation and physical safety. Rhodes, 452 U.S. at
346; see also James v. Milwaukee County, 956 F.2d 696, 699 (7th Cir. 1992). Prisoners cannot
expect the “amenities, conveniences, and services of a good hotel.” Harris v. Fleming, 839 F.2d
1232, 1235 (7th Cir.1988). However, “[s]ome conditions of confinement may establish an
Eighth Amendment violation ‘in combination’ when each would not do so alone, but only when
they have a mutually enforcing effect that produces the deprivation of a single, identifiable
human need such as food, warmth, or exercise-for example, a low cell temperature at night
combined with a failure to issue blankets.” Wilson v. Seiter, 501 U.S. 294, 304 (1991).
The complaint generally states a colorable Eighth Amendment claim under the notice
pleading standard, at least relative to the alleged conditions of confinement, which may combine
to endanger Plaintiffs’ health. See Vance v. Rumsfeld, 701 F.3d 193, 205-06 (7th Cir. 2012)

Page 4 of 9

(citing Wilson v. Seiter, 501 U.S. 294, 304 (1991) (holding that conditions of confinement may
establish an Eighth Amendment violation in combination, even if each might not suffice alone, if
they have “a mutually enforcing effect that produces the deprivation of a single, identifiable
human need such as food, warmth, or exercise”)). Nevertheless, further discussion is warranted.
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). As a result, the respondeat superior doctrine—supervisory
liability—generally 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). “Supervisory liability will be found … if the
supervisor, with knowledge of the subordinate’s conduct, approves of the conduct and the basis
for it.” Lanigan v. Village of East Hazel Crest, Ill., 110 F.3d 467, 477 (7th Cir. 1997); Chavez v.
Illinois State Police, 251 F.3d 612, 651 (7th Cir. 2001). See also Doyle v. Camelot Care
Centers, Inc., 305 F.3d 603, 615 (7th Cir. 2002) (allegations that an agency’s senior officials
were personally responsible for creating the policies, practices and customs that caused the
constitutional deprivations suffice to demonstrate personal involvement).

But no policy or

practice attributable to Director Godinez or Warden Luth is alleged here.

No personal

involvement on the part of Warden Luth outside the grievance process is alleged. The same can
be said of Director Godinez. The Warden and the Director cannot be held liable based solely on
their involvement in the grievance process. See Burks v. Raemisch, 555 F.3d 592, 595-96 (7th
Cir. 2009). Thus, in terms of individual liability, the complaint fails to state a claim against
Director Godinez or Warden Luth in their individual capacities.

Page 5 of 9

Absent any individual liability, a warden can still be liable in his official capacity, but
only for purposes of securing injunctive relief. See Gonzalez v. Feinerman, 663 F.3d 311, 315
(7th Cir. 2011); Delaney v. DeTella, 256 F.3d 679, 687 (7th Cir. 2001).

The Eleventh

Amendment bars official capacity claims for monetary damages. Brown v. Budz, 398 F.3d 904,
917-18 (7th Cir. 2005). Consequently, no relief is available against Director Godinez, and he
shall be dismissed as a defendant in both his individual and official capacities. Plaintiffs’ Eighth
Amendment claim shall proceed only against Warden Luth in his official capacity and only for
purposes of securing injunctive relief.
Disposition
IT IS HEREBY ORDERED that, on or before March 27, 2015, Plaintiffs Harris and
Hilliard shall each either: (1) pay the $400 filing fee in full; or (2) file a motion for leave to
proceed in forma pauperis, accompanied by a certified trust fund statement obtained from the
Trust Fund Officer at Vandalia Correctional Center, and a copy of his trust fund account
statement (or institutional equivalent) for the period from June 5, 2014, through January 5, 2015.
Failure of a plaintiff to either pay the full filing fee or properly move for pauper status by the
prescribed deadline will result in that plaintiff’s dismissal from this case without prejudice. If
both of the plaintiffs fail to properly tend to the fee issue, this action will be dismissed without
prejudice, judgment shall enter, and the case will be closed.
The Clerk is DIRECTED to mail each Plaintiff a blank form motion for leave to proceed
in forma pauperis and the certification form. The Clerk is FURTHER DIRECTED to mail a
copy of this order and the certification forms to the Trust Fund Officer at Vandalia Correctional
Center.

Page 6 of 9

IT IS FURTHER ORDERED that Defendant S.A. GODINEZ is DISMISSED from
this action.
IT IS FURTHER ORDERED that Defendant JAMES LUTH is DISMISSED in his
individual capacity, and all claims against him for monetary relief are DISMISSED.
IT IS FURTHER ORDERED that COUNT 1 shall otherwise PROCEED against
Defendant JAMES LUTH in his official capacity, only for purposes of injunctive relief.
The Clerk of Court shall prepare for Defendant JAMES LUTH (in his official
capacity): (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 Defendant’s place of employment as
identified by Plaintiffs.
If 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 Defendant, and the Court will require Defendant to pay the full costs of
formal service, to the extent authorized by the Federal Rules of Civil Procedure.
If Defendant no longer can be found at the work address provided by Plaintiffs, 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.
Plaintiffs shall serve upon Defendant (or upon defense counsel once an appearance is
entered), a copy of every pleading or other document submitted for consideration by the Court,

Page 7 of 9

as detailed in the Court’s order dated January 28, 2015 (Doc. 5). Plaintiffs 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 Defendant 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.
Defendant Luth is 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, including consideration of
Plaintiffs’ motion for counsel (Doc. 3).
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 Plaintiffs, and the judgment includes the payment of costs
under Section 1915, Plaintiffs will be required to pay the full amount of the costs,
notwithstanding that one or both of them may been granted pauper status. See 28 U.S.C. §
1915(f)(2)(A).
Plaintiffs are 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 applicants and their attorney(s) 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 Plaintiffs and remit the balance to
Plaintiffs. Local Rule 3.1(c)(1).

Page 8 of 9

Finally, Plaintiffs are ADVISED that they are each 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 their 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: February 25, 2015

______________________________
NANCY J. ROSENSTENGEL
United States District Judge

Page 9 of 9