Diaz-Guillen v. Vieregge et al

Filing 4

IT IS HEREBY ORDERED that Plaintiff's complaint (Doc. 1) is DISMISSED without prejudice. IT IS FURTHER ORDERED that, should Plaintiff wish to proceed with this case, Plaintiff shall file his First Amended Complaint within 35 days of the entry of this order. (Amended Pleadings due by 11/20/2015). Signed by Judge Nancy J. Rosenstengel on 10/16/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
LUIS DIAZ-GUILLEN,
Plaintiff,
vs.
J.D. VIEREGGE,
BRENT ELLIS,
AARON L. LAY,
MATT MCCONKEY,
VIPIN SHAH, and
JAY L. SWANSON
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)

Case No. 3:15-cv-01101-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff Luis Diaz-Guillen is currently incarcerated at the Western Illinois Correctional
Center in Mt. Sterling, Illinois, but was previously incarcerated at the Fayette County Jail in
Vandalia, Illinois. (Doc. 1 at 1.) Proceeding pro se, Diaz-Guillen has filed a civil rights action
pursuant to 42 U.S.C. § 1983 against various jail staff and the former Sheriff of Fayette County,
along with medical officials who seemingly evaluated him during his tenure at the jail. (Id. at 13.) Diaz-Guillen alleges that the defendants violated his constitutional rights by exposing him to
inhumane conditions at the Fayette County Jail and by failing to treat medical issues caused by
the conditions at the jail. (Id. at 5-6.) He seeks monetary damages. (Id. at 8.)
This matter is now before the Court for a preliminary review of Diaz-Guillen’s complaint
pursuant to 28 U.S.C. § 1915A. Under 28 U.S.C. § 1915A, the Court shall review a “complaint
in a civil action in which a prisoner seeks redress from a governmental entity or officer or
employee of a government entity.” During this preliminary review under § 1915A, the court
Page 1 of 5

“shall identify cognizable claims or dismiss the complaint, or any portion of the complaint,” if
the complaint “is frivolous, malicious, or fails to state a claim on which relief may be granted” or
if it “seeks monetary relief from a defendant who is immune from such relief.”
Background
At some unspecified point prior to his incarceration at Western, Diaz-Guillen was housed
at the Fayette County Jail for an eighteen-month period. (Doc. 1 at 1, 5.) During his time at the
jail, Diaz-Guillen says he was housed in a cell with an atmosphere “filled with friable asbestos”
and with walls “filled with black mold.” (Id. at 5-6.) While his complaint is not specific, he
claims that Vieregge, Ellis, Lay, and McConkey were involved with this placement and with the
failure to remove him from the cell. (Id.) Diaz-Guillen developed sinus complications from the
exposure to asbestos and mold, and at some unknown point Dr. Shah and Dr. Swanson became
involved in his care. (Id. at 6.) Diaz-Guillen claims that both doctors failed to provide timely
treatment for his condition, which ultimately developed into a “mass which hung down from the
roof of his mouth.” (Id.) The mass was eventually removed by a surgeon, leaving Diaz-Guillen
with a hole in his mouth that he must clean out to prevent further problems. (Id.)
On October 6, 2015, Diaz-Guillen filed a § 1983 complaint in this Court. (Id. at 1.)
Discussion
Diaz-Guillen’s complaint first alleges that Vieregge, Ellis, Lay, and McConkey exposed
him to improper conditions in his cell at the jail (Count 1), so the Court will start with that
claim. It is unclear whether Diaz-Guillen was a pretrial detainee or a prisoner at the jail: pretrial
detainee claims concerning improper conditions are cognizable under the Fourteenth
Amendment, while prisoner conditions claims are cognizable under the Eighth Amendment.
Rice v. Correctional Med. Servs., 675 F.3d 650, 664 (7th Cir. 2012). Either way, “courts still
Page 2 of 5

look to Eighth Amendment case law in addressing the claims of pretrial detainees, given that the
protections of the Fourteenth Amendment’s due process clause are at least as broad as those that
the Eighth Amendment affords to convicted prisoners.” Id. To state a conditions claim under
either amendment, a prisoner must first allege that the adverse conditions were sufficiently
serious, and must then allege that the named defendants possessed a “sufficiently culpable state
of mind.” Smith v. Dart, — F.3d —, 2015 WL 5656844, at *3 (7th Cir. Sept. 25, 2015).
Diaz-Guillen runs into trouble on the second requirement, namely intent on the part of the
named parties. To satisfy this element, a plaintiff must allege that each defendant was personally
involved in his claim – that each defendant possessed a “purposeful, a knowing, or possibly a
reckless state of mind with respect to the defendant’s actions (or inaction) toward the plaintiff.”
Id. While personal involvement can be inferred at the pleading stage of a conditions case for
senior officials when a plaintiff alleges systemic conditions, more localized conditions issues do
not enjoy the same presumption – in those cases a plaintiff must explain how each defendant was
involved in the conditions. See Antonelli v. Sheahan, 81 F.3d 1422, 1428-29 (7th Cir. 1996).
Here, Diaz-Guillen has not included enough detail about the conditions at the jail to suggest that
there was a widespread, systemic problem with asbestos or mold; his narrative focuses only on
problems in his own cell. In addition, Diaz-Guillen has not laid out how the defendants knew of
the conditions in his cell yet failed to act or were otherwise reckless. Without more developed
allegations on these points, Diaz-Guillen has not alleged personal involvement on the part of
each defendant, and Count 1 must be dismissed without prejudice. Diaz-Guillen is free to file an
amended complaint that elaborates on the conditions at the jail or puts forth allegations
explaining how the named defendants were told of the problems in his cell yet failed to assist.

Page 3 of 5

Diaz-Guillen next alleges that Dr. Shah and Dr. Swanson delayed treating his sinus
conditions at the jail, in violation of his Eighth or Fourteenth Amendment rights (Count 2). To
state a medical claim under either amendment, a plaintiff must “allege deliberate indifference to
his serious medical needs.” Burton v. Downey, — F.3d —, 2015 WL 5894126, at *6 (7th Cir.
Oct. 8, 2015). “[D]eliberate indifference” is a robust state of mind requirement – a “defendant’s
inadvertent error, negligence, or even ordinary malpractice” is insufficient to rise to the level of a
constitutional violation. Vance v. Peters, 97 F.3d 987, 992 (7th Cir. 1996). Rather, deliberate
indifference exists when an official engages in “criminal recklessness” – that is, ignorance of “a
known risk.” McGee v. Adams, 721 F.3d 474, 480-81 (7th Cir. 2013). Here, Diaz-Guillen has
pled very little about Dr. Shah and Dr. Swanson’s involvement in his care: he claims in a
conclusory manner that both doctors delayed treatment, but he includes no particulars as to when
he first developed sinus issues, when he first told the doctors about that problem, or how they
delayed care. Without that information, he has not pled enough to allege deliberate indifference
on the part of Dr. Shah or Dr. Swanson related to his care, and thus Count 2 must be dismissed
without prejudice. Like his conditions claim, Diaz-Guillen may file an amended complaint that
explains how Shah and Swanson were aware of his need for treatment and how they responded.
Disposition
IT IS HEREBY ORDERED that, for the reasons stated, Plaintiff’s complaint (Doc. 1) is
DISMISSED without prejudice.
IT IS FURTHER ORDERED that, should Plaintiff wish to proceed with this case,
Plaintiff shall file his First Amended Complaint within 35 days of the entry of this order (on or
before November 20, 2015). He should label the form First Amended Complaint, and he should
use the case number for this action. An amended complaint supersedes and replaces all previous
Page 4 of 5

complaints, rendering previous complaints void. See Flannery v. Recording Indus. Ass’n of Am.,
354 F.3d 632, 638 n.1 (7th Cir. 2004). The Court will not accept piecemeal amendments to a
complaint. Thus, the First Amended Complaint must stand on its own, without reference to any
other pleading. Should the First Amended Complaint not conform to these requirements, it shall
be stricken. Plaintiff must also re-file any exhibits he wishes the Court to consider along with
the amended complaint. Failure to file a First Amended Complaint shall result in the dismissal
of this action with prejudice. Such dismissal shall count as one of Plaintiff’s three allotted
“strikes” within the meaning of 28 U.S.C. § 1915(g). No service shall be ordered on any
Defendant until after the Court completes its § 1915A review of the First Amended Complaint.
In order to assist Plaintiff in preparing his amended complaint, the CLERK is
DIRECTED to mail Plaintiff a blank civil rights complaint form.
Plaintiff is further 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: October 16, 2015
______________________________
NANCY J. ROSENSTENGEL
United States District Judge

Page 5 of 5