Hoffmann v. Lakin et al

Filing 8

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Signed by Judge Nancy J. Rosenstengel on 7/6/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DAVID HOFFMAN,
Plaintiff,
vs.
JOHN LAKIN, GARY BOST,
et al.,
Defendants.

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Case No. 15-cv-00648-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff David Hoffman, a pretrial detainee at Madison County Jail (“Jail”), brings this
pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff has named nineteen Defendants,
all employees of the Jail. (See Doc. 1). Plaintiff’s principal complaint is that Defendants have
subjected him to inhumane conditions of confinement in violation of the Constitution.
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).
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
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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). At this preliminary stage, the Court finds
that Plaintiff’s complaint passes threshold review.
The Complaint
Plaintiff, a pretrial detainee, has been detained at the Madison County Jail (“Jail”)
Housing Unit B-North since March 13, 2014. (Doc. 1, p. 12). Since then, he has been exposed to
various conditions that he asserts violate his constitutional rights. On three separate occasions
(March 18, March 19, and April 26, 2015), Plaintiff was directly exposed to large amounts of
raw sewage when the sewer drains and toilets on the unit backed up causing human waste to
flow into cells (including Plaintiff’s) and the walkways of the housing unit. Id. at 13. Exposure to
the waste caused Plaintiff to suffer stomachaches, diarrhea, and severe headaches. He was never
offered any medical attention. Id. In addition, the April 26 sewer backup caused damage to some
of Plaintiff’s personal property, including his legal documents and multiple photos of his
children. Id. at 22. The Complaint states that each of the named Defendants was informed of the
ongoing inhumane and unsanitary conditions, yet failed to take action to mitigate the risks to
Plaintiff’s health and safety. Id. Plaintiff maintains that a black mold line has formed four to six
inches up the wall and is still visible on the walkway between cells, demonstrating the reach of
the sewage, as well as the lack of cleanup. Id.
In addition to the sewage problem, Plaintiff complains that the Jail was infested with ants
from April 14 through May 11, 2015. Id. at 16. During that month, Plaintiff suffered ant bites all
over his body and was unable to sleep due to the ant infestation. Id. Plaintiff also asserts that
convicted inmates are detained in his housing unit, which creates a “stressful environment” and

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violates Illinois state law. See 730 ILCS 125/11; Doc. 1, p. 14. With respect to the conditions of
his confinement, Plaintiff additionally claims that jail officials have adopted a meal schedule that
forces detainees to wait 15 hours between dinner, which is served at 4:30 p.m., and breakfast,
which is served at 7:30 a.m. Id. at 28. He alleges that the meals are nutritionally inadequate,
which causes detainees to suffer both mentally and physically. Id.
Finally, Plaintiff alleges that on April 10, 2015, Defendant Mike Hare threw a milk
carton at him, without provocation. Id. at 25. The carton exploded, causing milk to cover
Plaintiff’s face. Although Plaintiff suffered no physical injury, he maintains that the experience
was degrading. Id.
Plaintiff has named the following nineteen Defendants, in their individual and official
capacities. For the sake of ease, the following Defendants shall be referred to as “Correctional
Defendants”: John Lakin (sheriff), Gary Bost (captain), Robert Hallenboch (lieutenant), Tim
Walker (deputy), Don McNaughton (deputy), Harley Foster (sergeant), Mike Hare (deputy),
Miron Thompson (sergeant), Craig Reichart (deputy), Tom Schmidt (deputy), Mike Tassone
(deputy), Robert Hertz (sheriff), Dover (sergeant), and Don Bunt (captain). The remaining
Defendants shall be referred to as “Medical Defendants”: Robert Blakenship (medical doctor),
Barbra Unfried (nurse), Martha Major (nurse), Alicia Rushing (nurse), and Valerie Bassets
(nurse). Plaintiff seeks compensatory and punitive damages.
Legal Standard for Pretrial Detainees
“Incarcerated persons are entitled to confinement under humane conditions which
provide for their ‘basic human needs.’” Rice ex rel. Rice v. Corr. Med. Servs., 675 F.3d 650, 664
(7th Cir. 2012) (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981). Because Plaintiff is a
pretrial detainee, his right to be confined under humane conditions is derived from the due

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process clause of the Fourteenth Amendment rather than the Eighth Amendment’s proscription
against cruel and unusual punishment, which is applied to convicted inmates. 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)). See also Klebanowski v. Sheahan, 540 F.3d 633, 637 (7th Cir. 2008).
The due process clause of the Fourteenth Amendment also “protects a pretrial detainee from the
use of excessive force that amounts to punishment.” Graham v. Connor, 490 U.S. 386, 395, n. 10
(1989).
To state a claim challenging the conditions of confinement, a detainee must first allege
that he has been subjected to adverse conditions that deny “the minimal civilized measure of
life’s necessities.” Budd v. Motley, 711 F.3d 840, 842 (7th Cir. 2013) (citing Farmer v. Brennan,
511 U.S. 825, 834 (1994) (citation omitted); Rice ex rel. Rice, 675 F.3d at 664; Gillis v. Litscher,
468 F.3d 488 (7th Cir. 2006); Vinning-El v. Long, 482 F.3d 923, 924 (7th Cir. 2007)). This
analysis examines whether the conditions of confinement exceeded the contemporary bounds of
decency of a mature civilized society. Id. Jail conditions that deprive inmates of basic human
needs—food, medical care, sanitation, or physical safety—may violate constitutional norms.
Rhodes v. Chapman, 452 U.S. 337, 346 (1981); see also James v. Milwaukee Cnty., 956 F.2d
696, 699 (7th Cir. 1992).
In addition, a detainee must allege that defendants “purposely or knowingly” acted (or
failed to act) or acted with criminal recklessness to create the conditions. See Kingsley v.
Hendrickson, No. 14-6368, 2015 WL 2473447, at *6 (U.S. June 22, 2015). 1

1

Following the United States Supreme Court’s Kingsley decision, it is unclear whether a detainee challenging the
conditions of his confinement must also allege that the defendant acted with a certain state of mind, namely
maliciously and sadistically with the intent to cause harm, or whether an allegation that defendant’s actions were
objectively unreasonable will suffice. In Kingsley, the Court adopted an objective standard for pretrial detainees’
excessive force claims, but did not explicitly state that this is the standard for conditions claims under the Fourteenth
Amendment. Until this Court receives further guidance on the appropriate standard to be applied in these cases, the

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Discussion
To facilitate the orderly management of future proceedings in this case, and in
accordance with the objectives of Federal Rules of Civil Procedure 8(e) and 10(b), the Court
finds it appropriate to reorganize the claims in Plaintiff’s pro se complaint, as shown below. The
parties and the Court will use these designations in all future pleadings and orders, unless
otherwise directed by a judicial officer of this Court.
Accepting Plaintiff’s allegations as true, as the Court must do at this preliminary stage,
the Court finds that Plaintiff has stated the following claims related to the conditions of his
confinement:
Count 1:

Correctional Defendants subjected Plaintiff to unsafe and unsanitary
conditions of confinement in violation of the Fourteenth Amendment when
they failed to prevent and/or limit Plaintiff’s exposure to raw sewage and an
ant infestation 2

Count 2:

Medical Defendants failed to provide Plaintiff medical care following his
exposure to raw sewage in violation of the Fourteenth Amendment

Count 3:

Correctional Defendants denied, and continue to deny, Plaintiff access to
reasonable and adequate nutrition in violation of the Fourteenth Amendment

Plaintiff may proceed on Counts 1 and 3 against each of the Correctional Defendants, in
their individual capacities only, and on Count 2 against each of the Medical Defendants, in their
individual capacities.
Plaintiff also seeks to hold all of the named Defendants liable in their official capacities.
An official capacity claim against jail officials may proceed if the constitutional deprivation was
Court will allow claims that otherwise state a conditions of confinement claim under the Fourteenth Amendment to
pass its threshold screening under 28 U.S.C. § 1915A(a).
2
In addition to the raw sewage incidents and ant infestation, Plaintiff asserts that Correctional Defendants have
created unsafe living conditions by housing him with convicted inmates. Nothing in the constitution mandates that
pretrial detainees and convicted individuals must be housed separately. To the extent that this arrangement has
contributed to unconstitutional conditions of confinement, however, Plaintiff may raise the related facts to support
his claim under Count 1. But to the extent that Plaintiff wishes to assert that Correctional Defendants have violated
Illinois state law, this is not the forum to address that claim. “The federal government is not the enforcer of state
law.” Pasiewicz v. Lake Cnty. Forest Preserve Dist., 270 F.3d 520, 526 (7th Cir. 2001).

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“undertaken pursuant to an official jail policy or widespread custom.” Grieveson v. Anderson,
538 F.3d 763, 773 (7th Cir. 2008). In other words, a plaintiff must point to “an express policy
which caused the injury, a widespread practice that is so well-settled as to amount to a policy,”
or show that the official had the “final policymaking authority for the decisions” regarding jail
conditions. Perkins v. Lawson, 312 F.3d 872, 875 (7th Cir. 2002). Here, Plaintiff has alleged that
Defendants were aware of the unconstitutional conditions (including raw sewage/ant infestation,
lack of medical treatment, and inadequate nutrition), but they failed to take appropriate steps to
rectify the conditions. That allegation is sufficient to put forth a municipal practice or custom for
purposes of initial review. See, e.g., Budd, 711 F.3d at 843 (claim alleging that sheriff “creat[ed]
conditions at the jail and permit[ed] them to persist” stated a “municipal practice or custom”);
Young v. Sheehan, No. 98 C 6527, 2000 WL 288516, at *5 (N.D. Ill. Feb. 24, 2000) (allegations
of “punitive conditions existing at Cook County Jail and inadequate conditions of confinement”
were “sufficient to support the inference of an official county jail policy, practice, or custom”).
Therefore, the Court will allow an official capacity claim on Counts 1, 2, and 3 to proceed
against Defendant Lakin, who, as sheriff, is responsible for running the Jail. See DeGenova v.
Sheriff of DuPage Cnty., 209 F.3d 973, 976 (7th Cir. 2000) (“Illinois sheriffs have final
policymaking authority over jail operations.”). All other official capacity claims are redundant
because they are based on the same theory of liability. Accordingly, the official capacity claims
against all other Defendants shall be dismissed.
Count 4:

Defendant Hare, by acting in a hostile and harassing manner towards
Plaintiff, has violated Plaintiff’s rights under the Fourteenth Amendment

Plaintiff concedes that he did not suffer any physical injury as a result of Defendant
Hare’s actions, yet he maintains that Defendant Hare violated his constitutional rights. While the
Court in no way condones behavior intended to demean or belittle another individual, it seems
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unlikely that Defendant Hare’s actions violated the Constitution. Nonetheless, out of an
abundance of caution, the Court will allow Plaintiff to proceed on this claim at this time.
Claim subject to dismissal
Count 5:

Defendants deprived Plaintiff of his property without due process of law in
violation of the Fourteenth Amendment when they allowed conditions to
persist that caused damage to Plaintiff’s personal property

To state a claim under the due process clause of the Fourteenth Amendment, Plaintiff
must establish a deprivation of liberty or property without due process of law; if the state
provides an adequate remedy, Plaintiff has no civil rights claim. Hudson v. Palmer, 468 U.S.
517, 530–36 (1984) (availability of damages remedy in state claims court is an adequate, postdeprivation remedy). The Seventh Circuit has found that Illinois provides an adequate postdeprivation remedy in an action for damages in the Illinois Court of Claims. Murdock v.
Washington, 193 F.3d 510, 513 (7th Cir. 1999); Stewart v. McGinnis, 5 F.3d 1031, 1036 (7th Cir.
1993); 705 Ill. Comp. Stat.. 505/8 (1995). Therefore, Plaintiff cannot seek damages in federal
court for the loss of his property, and his Fourteenth Amendment civil rights claim (Count 5)
shall be dismissed with prejudice. He may, however, seek redress for his economic loss in state
court, provided that he can file his state action in accordance with the applicable rules and
deadlines. The dismissal of this civil rights action shall not operate as a bar to Plaintiff bringing a
property claim in the Illinois Court of Claims.
Pending Motions
Plaintiff’s motion for recruitment of counsel (Doc. 3) remains PENDING and shall be
referred to United States Magistrate Judge Wilkerson for a decision.
Plaintiff’s motion for service of process at government expense (Doc. 4) is unnecessary
and, therefore, DENIED as moot.

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Disposition
IT IS HEREBY ORDERED that Plaintiff’s claims on COUNTS 1 and 3 shall proceed
against Defendants JOHN LAKIN, GARY BOST, ROBERT HALLENBOCH, TIM
WALKER, DON MCNAUGHTON, HARLEY FOSTER, MIKE HARE, MIRON
THOMPSON, CRAIG REICHART, TOM SCHMIDT, MIKE TASSONE, ROBERT
HERTZ, DOVER, AND DON BUNT, in their individual capacities only.
Plaintiff may also proceed on COUNT 2 against Defendants ROBERT BLAKENSHIP,
BARBRA UNFRIED, MARTHA MAJOR, ALICIA RUSHING, AND VALERIE
BASSETS, in their individual capacities only.
Plaintiff may also proceed on COUNT 4 against Defendant MIKE HARE, in his
individual capacity. Finally, Plaintiff may proceed on COUNTS 1, 2, and 3 against Defendant
JOHN LAKIN, in his official capacity as Sheriff.
IT IS FURTHER ORDERED that COUNT 5 is DISMISSED against all Defendants
for failure to state a claim upon which relief may be granted.
The Clerk of Court shall prepare for Defendants JOHN LAKIN, GARY BOST,
ROBERT HALLENBOCH, TIM WALKER, DON MCNAUGHTON, HARLEY FOSTER,
MIKE HARE, MIRON THOMPSON, CRAIG REICHART, TOM SCHMIDT, MIKE
TASSONE, ROBERT HERTZ, DOVER, DON BUNT, ROBERT BLAKENSHIP,
BARBRA UNFRIED, MARTHA MAJOR, ALICIA RUSHING, AND VALERIE
BASSETS: (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

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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
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, 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
Wilkerson for disposition, pursuant to Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), if all

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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
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 6, 2015
__________________________
NANCY J. ROSENSTENGEL
United States District Judge

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