Pratt v. Hertz et al

Filing 7

ORDER REFERRING CASE to Magistrate Judge Philip M. Frazier. Signed by Judge Staci M. Yandle on 1/4/2016. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
BRIAN N. PRATT, #S-07125,

)
)
Plaintiff,
)
)
vs.
)
)
ROBERT HERTZ, JOHN LAKIN,
)
GARY BOST, ROBERT HOLLENBECK, )
LT. HILL, TONY COURT,
)
ARLEY FOSTER, MATTHEW DOVER, )
MYRON THOMPSON, MIKE HARE,
)
JODIE COLEMAN, PAUL SARHAGE,
)
STEVE RIDINGS, TIM WALKER,
)
DON MCNAUGHTON,
)
CRAIG REICHART, TOM SCHMIDT,
)
and MATT MILLER,
)
)
Defendants.
)

Case No. 15-cv-01102-SMY

MEMORANDUM & ORDER
YANDLE, District Judge:
Plaintiff Brian Platt, who is currently confined at Graham Correctional Center in
Hillsboro, Illinois, brings this pro se civil rights action pursuant to 42 U.S.C. § 1983. The events
giving rise to this action occurred while Plaintiff was a pretrial detainee at Madison County Jail
(“Jail”). (See Doc. 1).
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
The events giving rise to this complaint occurred between June 2014 and July 2015 while
Plaintiff was confined as a pretrial detainee at the Madison County Jail (“Jail”). (See Doc. 1).
Plaintiff claims that during this time period he was exposed to various conditions that he asserts
violated his constitutional rights.
Plaintiff worked as a “trustee” at the Jail, and on three separate occasions he was ordered
by Gus Navarette 1 and Defendants McNaughton and Hill to clean up feces, blood, and urine that
had been deliberately thrown by other detainees housed on the E-South block who were acting
out. Id. at 12. Plaintiff states that he was never provided with the proper gear (i.e., gloves,
ventilation mask) when ordered to clean up and that he was forced to come in direct contact with
human waste. Id.
In addition, on multiple occasions, Plaintiff was directly exposed to large amounts of raw
sewage when the sewer drains and toilets at the Jail backed up causing human waste to flow
throughout the Jail, including into his own cell. Id. at 13-14. During the month of September
2014, raw sewage repeatedly seeped out of the drain in the shower area. Id. at 14. Plaintiff was
forced to shower in the midst of human waste. On another day in May 2015, Plaintiff and other
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Plaintiff does not list Navarette as a defendant, although he refers to him as such in the complaint.

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detainees were forced to endure a sewage backup in the toilets of their cells overnight. Id. at 22.
Plaintiff claims that he notified Defendants Lakin, Bost, Dover, Coleman, Ridings, Sarhage, and
Hare about the overnight sewage issue, but again, no one took any action to address the sewer
problems. Plaintiff maintains that all of the Defendants were made aware of the sewer backup
problem, but again, none of the Defendants took any action to address the sewage issues. As a
trustee, Plaintiff was ordered by Defendants Schmidt, Reichart, and Walker to clean up the raw
sewage caused by the backups, but he was never provided the proper gear to protect himself
from the unsanitary conditions. In addition, Plaintiff and other detainees were never provided
appropriate cleaning supplies to adequately disinfect their personal living spaces. Id. at 16.
Adding insult to injury, the raw sewage problem caused the Jail to be infested with black raw
sewage flies and larvae, which Plaintiff maintains flew in to his mouth, nose, and food. Id. at 28.
Exposure to the waste and insects caused Plaintiff to suffer severe headaches, stomachaches, loss
of appetite, emotional distress, and sleeplessness. Id. at 15.
Plaintiff contends that Defendants Hertz, Bost, and Bunt 2 should have directed the health
care unit to provide follow-up medical exams for detainees who had come in direct contact with
the raw sewage, but that detainees were never offered any medical attention. Id. Plaintiff further
asserts that Defendant Bost should adopt a policy that any detainee exposed or in direct contact
with raw sewage should receive medical attention, free of charge. 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 21. During that month, Plaintiff was awoken on
several occasions to ants crawling all over his face and body. Id. Plaintiff personally notified
Defendants Sarhage, Ridings, Walker, Schmidt, Reichart, and Bost about the ant infestation, but
none of these Defendants took any steps to address the ant issues. Id. at 22.
2

Bunt is another individual who is not listed as a defendant, but who is referred to here as such.

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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. Plaintiff contends that Defendants
Hertz, Lakin, and Bost are responsible for adopting the meal policy and that Defendants
Hollenbeck, Foster, Court, Dover, Thompson, Walker, McNaughton, and Hare were notified
about the small portions of food, but did nothing to address the issue. Id. at 27.
Plaintiff also contends that the law library does not contain adequate resources and the
Jail does not employ individuals who are capable of assisting detainees with legal matters.
Moreover, Plaintiff complains that his time to access resources in the library was very limited.
Plaintiff further asserts that while at the Jail he was unable to obtain adequate writing supplies.
Id. at 29. Plaintiff claims that he asked Defendants Hill and Hollenbeck about using a copy
machine and getting access to a notary public, but was told that the Jail didn’t have either. Id.
Plaintiff contends that Defendant Bost, as a policymaker, should ensure that detainees have the
resources necessary to properly address their legal matters. Id.
Lastly, Plaintiff asserts that he was taken to the recreational gym only four times in 17
months. Id. at 30. Plaintiff complained to several Defendants about the lack of recreational
time.

Defendants responded that the dayroom provides detainees with recreational time.

Plaintiff contends that the dayroom is “(10) feet by (25) feet in space with a shower/toilet/sink, a
(12) foot table in the middle of dayroom, (2) phones and a (17) inch T.V., with (16) other
detainees” and that most of the time “there is a detainee with a [mattress] sleeping” in the
dayroom due to overcrowding at the Jail. Id. Defendant maintains that all of the Defendants

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were aware of this practice and that he has specifically written complaints to Defendant Bost
regarding this policy. Id.
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). The Due Process
Clause of the Fourteenth Amendment governs claims for unconstitutional conditions of
confinement brought by pretrial detainees. See Smith v. Dart, 803 F.3d 304 (7th Cir. 2015);
Budd v. Motley, 711 F.3d 840, 842 (7th Cir. 2013); Rice ex rel. Rice v. Corr. Med. Servs., 675
F.3d 650, 664 (7th Cir. 2012); Forest v. Prine, 620 F.3d 739, 744-45 (7th Cir. 2010);
Klebanowski v. Sheahan, 540 F.3d 633, 637 (7th Cir. 2008). The Eighth Amendment governs
claims for convicted prisoners. Id. As the Seventh Circuit recently explained,
[A] pretrial detainee is entitled to be free from conditions that amount to
“punishment,” Bell v. Wolfish, 441 U.S. 520, 535 (1979), while a convicted
prisoner is entitled to be free from conditions that constitute “cruel and unusual
punishment.” Farmer v. Brennan, 511 U.S. 825, 832 (1994). In both cases,
however, the alleged conditions must be objectively serious enough to amount to
a constitutional deprivation, and the defendant prison official must possess a
sufficiently culpable state of mind.
Smith, 803 F.3d at 309.
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

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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). 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 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 the “objectively

unreasonable” 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 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).
Discussion
The Court finds it convenient to divide the complaint into five counts. 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.
Count 1:

All Defendants (plus Gus Navarette) subjected Plaintiff to unsafe and
unsanitary conditions of confinement when they failed to prevent and/or
limit Plaintiff’s exposure to raw sewage, sewage flies, and an ant infestation.

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Count 2:

Defendants Hertz, Lakin, Bost, Hollenbeck, Foster, Court, Dover, Thompson,
Walker, McNaughton, and Hare denied Plaintiff access to reasonable and
adequate nutrition in violation of the Fourteenth Amendment.

Count 3:

Defendants Hertz, Bost, and Bunt failed to provide medical care to Plaintiff
following his direct exposure to raw sewage.

Count 4:

Defendant Bost failed to provide Plaintiff with reasonable access to the law
library and other legal resources.

Count 5:

Defendants denied Plaintiff an adequate opportunity to exercise in violation
of the Fourteenth Amendment.

Plaintiff has provided a long, meandering narrative of his claims in a 34-page complaint
and an 8-page affidavit. (See Doc. 1). The complaint does not delineate specific counts nor does
it always clearly associate specific Defendants with specific claims. Moreover, under the section
entitled “Defendants” on the Court-provided complaint form, Plaintiff lists 18 Defendants.
However, Plaintiff refers to additional individuals as “Defendants” throughout the complaint and
in his prayer for relief. In addition, some of the individuals identified as Defendants on the
complaint form are not listed as Defendants in other places where Plaintiff purportedly lists all
Defendants (i.e., p. 5, paragraph 2; p. 34, under the section entitled prayer for relief). This makes
it particularly difficult for the Court to determine who Plaintiff seeks to hold liable, particularly
when he makes blanket statements such as “Defendants were all aware of [the problem]” (see
e.g., p. 30).
The reason that plaintiffs, even those proceeding pro se, for whom the Court is required
to liberally construe complaints, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972), are required
to associate specific defendants with specific claims is to ensure that defendants are put on notice
of the claims brought against them so that they can properly answer the complaint. Merely
invoking the name of a potential defendant is not sufficient to state a claim against that

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individual. See Collins v. Kibort, 143 F.3d 331, 334 (7th Cir. 1998) (“A plaintiff cannot state a
claim against a defendant by including the defendant’s name in the caption.”).
Under each Count, except Count 1, the Court has listed Defendants that Plaintiff
specifically identified as personally responsible for the alleged constitutional violation. Because
the conditions described under Count 1 were so pervasive and occurred over such an extended
period of time, the Court has included all of the Defendants Plaintiff identified under the
“Defendants” section on the Court-provided complaint form. In addition, the Court will direct
the Clerk of Court to add Gus Navarette as a defendant and Plaintiff shall be allowed to proceed
against him, in addition to all of the other named Defendants, under Count 1.
Count 1:

All Defendants (plus Gus Navarette) subjected Plaintiff to unsafe and
unsanitary conditions of confinement when they failed to prevent and/or
limit Plaintiff’s exposure to raw sewage, sewage flies, and an ant infestation.

Count 2:

Defendants Hertz, Lakin, Bost, Hollenbeck, Foster, Court, Dover, Thompson,
Walker, McNaughton, and Hare denied Plaintiff access to reasonable and
adequate nutrition in violation of the Fourteenth Amendment.

Plaintiff has adequately stated a condition of confinement claim under Counts 1 and 2.
Further factual development is necessary to determine which of the named Defendants may be
liable.

Therefore, at this juncture, Plaintiff may proceed on Counts 1 and 2 against the

Defendants identified above.
Claims Subject to Dismissal
Count 3:

Defendants Hertz, Bost, and Bunt failed to provide medical care to Plaintiff
following his direct exposure to raw sewage.

Plaintiff alleges that following his exposure to raw sewage he suffered headaches,
stomachaches, as well as other physical and emotional ailments. He asserts that medical care
was never offered to him or other detainees, but he never alleges that he requested medical
attention and was denied treatment. Perhaps Plaintiff did request medical attention and it was
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denied or delayed, but Plaintiff does not suggest this was the case. Failure to offer medical care
does not violate the Fourteenth Amendment. For this reason, Count 3 shall be dismissed without
prejudice.
Count 4:

Defendant Bost failed to provide Plaintiff with reasonable access to the law
library and other legal resources.

In order to proceed on an access to courts claim, an inmate must show actual substantial
prejudice to specific litigation. Kincaid v. Vail, 969 F.2d 594, 603 (7th Cir. 1992), cert. denied,
506 U.S. 1062 (1993). “[T]he mere denial of access to a prison law library or to other legal
materials is not itself a violation of a prisoner’s rights; his right is to access the courts, and only
if the defendants’ conduct prejudices a potentially meritorious challenge to the prisoner’s
conviction, sentence, or conditions of confinement has this right been infringed.” Marshall v.
Knight, 445 F.3d 965, 968 (7th Cir. 2006).
The complaint does not suggest that Plaintiff suffered any “actual substantial prejudice to
specific litigation.” Kincaid, 969 F.2d at 603. Instead, Plaintiff merely claims that his access to
the law library and other resources has been inadequate.

Accordingly, Count 5 shall be

dismissed without prejudice.
Count 5:

Defendants denied Plaintiff an adequate opportunity to exercise in violation
of the Fourteenth Amendment.

The Seventh Circuit has recognized that “lack of exercise can rise to a constitutional
violation ‘[w]here movement is denied and muscles are allowed to atrophy [ ] [and] the health of
the individual is threatened.’” Smith v. Dart, 803 F.3d 304, 313 (7th Cir. 2015) (citations
omitted). Here, Plaintiff alleges that he was denied “recreational time” in the “recreational
gym,” and he suggests that the dayroom is crowded, but he does not allege that he was unable to
exercise in his cell or the dayroom. More is needed to state a sufficiently serious constitutional

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deprivation. See Smith, 803 at 313 (finding that allegation of a lack of outdoor recreation time
does not rise to the level of a constitutional claim). As such, Count 5 shall also be dismissed
without prejudice.
Disposition
The Clerk of Court is DIRECTED to ADD GUS NAVARETTE as a Defendant to this
case.
IT IS HEREBY ORDERED that Plaintiff may proceed on COUNT 1 against
Defendants HERTZ, LAKIN, BOST, HOLLENBECK, HILL, COURT, FOSTER, DOVER,
THOMPSON, HARE, COLEMAN, SARHAGE, RIDINGS, WALKER, MCNAUGHTON,
REICHART, SCHMIDT, MILLER, and NAVARETTE.
IT IS FURTHER ORDERED that Plaintiff may proceed on COUNT 2 against
Defendants HERTZ, LAKIN, BOST, HOLLENBECK, FOSTER, COURT, DOVER,
THOMPSON, WALKER, MCNAUGHTON, and HARE.
IT IS FURTHER ORDERED that COUNTS 3, 4, and 5 are DISMISSED WITHOUT
PREJUDICE.
The Clerk of Court shall prepare for Defendants HERTZ, LAKIN, BOST,
HOLLENBECK, HILL, COURT, FOSTER, DOVER, THOMPSON, HARE, COLEMAN,
SARHAGE, RIDINGS, WALKER, MCNAUGHTON, REICHART, SCHMIDT, MILLER,
and NAVARETTE: (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,

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

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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: January 4, 2016

s/ STACI M. YANDLE
United States District Judge

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