Herndon v. Hertz et al

Filing 7

ORDER REFERRING CASE to Magistrate Judge Philip M. Frazier. Signed by Judge J. Phil Gilbert on 6/24/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TRAVION HERNDON,
No. 87586,
Plaintiff,
vs.
ROBERT HERTZ,
JOHN LAKIN,
SGT. DOVER,
ROBERT HALLENBOCH,
TIM WALKER,
TONY COURT,
MIKE HARE,
CRAIG REICHART,
GARY BOST, and
RANDY YOUNG,
Defendants.

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Case No. 15-cv-00601-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff Travion Herndon is a pretrial detainee currently housed in the Madison County
Jail.

Pursuant to 42 U.S.C. § 1983, Plaintiff brings this action for deprivations of his

constitutional rights with respect to the conditions of his confinement in Housing Unit B-North,
which he contends pose a risk to his health and safety.
This case is now before the Court for a preliminary review of the complaint pursuant to
28 U.S.C. § 1915A. 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). 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, on multiple occasions between December 27, 2014, and
April 27, 2015, raw sewage backed up into Housing Unit B-North, where Plaintiff Herndon is
housed. The sewage overflowed from the toilets, into Plaintiff’s cell and the entire cell block.
Plaintiff had direct physical contact with raw sewage, and he had to endure the associated odors.
In response to the plumbing problem, the water was shut off. Plaintiff, however, was not
provided with bottled drinking water or anything else to drink for approximately 24 hours. He
was also not given cleaning supplies for up to 24 hours after the flooding, and on at least one
occasion he was given only a broom and dustpan, but no mop or gloves. The 4-to-6 inch high
line of mold that formed around the unit has not been scrubbed off. The adjoining officers’
walkway was not immediately mopped after these flooding incidents, and when the unit flooded
in April 2015, Lt. Hallenboch just swept the sewage from the officers’ walkway into the
cellblock.

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Although the complaint makes several sweeping allegations regarding the defendants
collectively being responsible for the conditions of Plaintiff’s confinement, there are few
allegations specific to particular defendants. However, there is an allegation that all ten named
defendants were aware of the problems with raw sewage overflowing into the unit, the failure to
clean and disinfect the area, and the mold problem.
Plaintiff contends the defendants have failed to provide him with sanitary housing, denied
him due process and equal protection, and violated his rights under the First, Fifth, Sixth, Eighth,
Thirteenth and Fourteenth Amendments. He seeks compensatory and punitive damages.
Based on the allegations in the complaint, the Court construes the complaint as asserting
the following single, overarching claim.
Count 1: Defendants subjected Plaintiff to conditions of confinement that
violated the Fourteenth Amendment.
Any other claims Plaintiff may have intended to assert should be considered dismissed
without prejudice, as insufficiently pleaded under the Twombly standard.

There are no

allegations that Plaintiff was treated differently vis-a-vis anyone else, so there is no basis for a
Fourteenth Amendment equal protection claim. Plaintiff’s mere reference to the First, Fifth,
Sixth, Eighth, and Thirteenth Amendments, without any allegations that would suggest claims
under those constitutional provisions are insufficient.

For example, the First Amendment

pertains to freedom of speech and religion, and the ability to redress grievances; the Sixth
Amendment pertains to criminal prosecutions; and the Thirteenth Amendment forbids slavery.
Although the Fifth Amendment also contains a due process guarantee, it is the Fourteenth
Amendment’s due process guarantee that applies to state officials.

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Discussion
Because Plaintiff is a pretrial detainee in the Madison County Jail, the sort of claims
Plaintiff is alleging arise under the Due Process Clause of the Fourteenth Amendment, not the
Eighth Amendment. See Budd v. Motley, 711 F.3d 840, 842 (7th Cir. 2013) (citing Rice ex rel.
Rice v. Corr. Med. Servs., 675 F.3d 650, 664 (7th Cir. 2012)). Although the same legal standards
generally apply under the Fourteenth Amendment (detainees) and Eighth Amendment (convicted
prisoners). Board v. Farnham, 394 F.3d 469, 478 (7th Cir. 2005).
The Due Process Clause of the Fourteenth Amendment prohibits conditions of
confinement for pretrial detainees that amount to punishment. Board v. Farnham, 394 F.3d 469,
477 (7th Cir. 2005).1 Leaving a person in 4-to-6 inches of raw sewage, and without anything to
drink sufficiently implicates the Fourteenth Amendment.
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). Because personal involvement is required for liability to
attach, the respondeat superior doctrine—supervisor liability—is not applicable to Section 1983

1

The Court will not expound regarding the mental state required for liability to attach, except to
observe that it is possible to infer from the complaint that each defendant acted knowingly and
deliberately. In Kingsley v. Hendrickson, __S.Ct.__, __U.S.__, 2015 WL 2473447 (Jun. 22,
2015), the Supreme Court ruled just days ago that a pretrial detainee’s Fourteenth Amendment
due process claim regarding the use of excessive force turned on the objective reasonableness of
the use of force. However, the high court specifically declined to decide whether such an
objective standard might suffice in a case involving mistreatment of a detainee, as the defendants
in that case did not dispute that they had acted purposefully or knowingly. Nevertheless, the
Kingsley Court noted that an objective standard had been applied in Bell v. Wolfish, 441 U.S.
520, 541-43 (1979), relative to a variety of prison conditions, including double-bunking.
Kingsley, 2015 WL 2473447 at *5-6. Bell did not specifically state that an objective standard
applied; rather, the Kingsley Court characterized the “rationally related” and “appears excessive
in relation to a legitimate nonpunitive governmental purpose” standards as being objective.
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actions. Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001) (quoting Chavez v. Ill. State
Police, 251 F.3d 612, 651 (7th Cir. 2001)).
Allegations that senior officials were personally responsible for creating the policies,
practices and customs that caused the constitutional deprivations 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). “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).
As noted in the synopsis of the complaint, Plaintiff makes several sweeping allegations
regarding the defendants collectively being responsible for the conditions of his confinement,
and there are few allegations specific to particular defendants. However, there is an allegation
that all ten named defendants were aware of the problems with raw sewage overflowing into the
unit, the lack of anything to drink, the failure to clean and disinfect the area, and the mold
problem. That allegation against all ten defendants, and the fact that an entire unit and the
officers’ walkway were flooded with raw sewage (something that would seem hard to ignore or
be unaware of), satisfy the Twombly pleading standard relative to individual involvement.
Count 1, the Fourteenth Amendment due process claim shall proceed against all ten
defendants.
Disposition
IT IS HEREBY ORDERED that, for the reasons stated, Plaintiff’s Fourteenth
Amendment claim, COUNT 1 shall PROCEED against Defendants ROBERT HERTZ, JOHN

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LAKIN, SGT. DOVER, ROBERT HALLENBOCH, TIM WALKER, TONY COURT,
MIKE HARE, CRAIG REICHERT, GARY BOST and RANDY YOUNG.
The Clerk of Court shall prepare for Defendants ROBERT HERTZ, JOHN LAKIN,
SGT. DOVER, ROBERT HALLENBOCH, TIM WALKER, TONY COURT, MIKE
HARE, CRAIG REICHERT, GARY BOST and RANDY YOUNG: (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.
Consequently, Plaintiff’s motion for service of process at government expense (Doc. 3) is
DENIED AS MOOT.
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

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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 a United States
Magistrate Judge 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

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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: June 24, 2015
s/J. Phil Gilbert
United States District Judge

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