Smith v. Groves et al

Filing 7

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson, 4 MOTION for Service of Process at Government Expense filed by Nazeer Smith.. Signed by Judge J. Phil Gilbert on 11/2/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
NAZEER SMITH,
No. M05152,
Plaintiff,
vs.
C/O GROVES, and
C/O BOWERMAN,
Defendants.

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Case No. 15-cv-01138-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff Nazeer Smith is an inmate currently housed in Pinckneyville Correctional
Center.

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.
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).
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 any reasonable person would find meritless. Lee v. Clinton, 209 F.3d 1025, 102627 (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

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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, during the five-day period from April 22 to April 27, 2014,
there was no running water in his cell. Consequently, Plaintiff and his cellmate had nothing to
drink during the 90-degree days; Plaintiff became dehydrated and dizzy. The toilet could not be
flushed and the cell and the inmates could not be cleaned, which caused Plaintiff to become ill.
Each day Plaintiff alerted C/O Groves and C/O Bowerman, but they only responded that they
had already put in a work order. When Plaintiff was finally moved to another cell, it did not
have hot water for a day.
Plaintiff contends the conditions of his confinement violated the Eighth Amendment. He
seeks compensatory and punitive damages.
Based on the allegations in the complaint, the Court finds it convenient to frame the
allegations into the following overarching claim.
Count 1: Defendants C/O Groves and C/O Bowerman subjected Plaintiff to
conditions of confinement from April 22-27, 2014, that amounted
to cruel and unusual punishment, in violation of the Eight
Amendment.
Discussion
The Eighth Amendment to the United States Constitution protects prisoners from being
subjected to cruel and unusual punishment.

U.S.CONST., amend. VIII. See also Berry v.

Peterman, 604 F.3d 435, 439 (7th Cir. 2010).

Eighth Amendment protection extends to

conditions of confinement that pose a substantial risk of serious harm, including health and
safety. See Estate of Miller, ex rel. Bertram v. Tobiasz, 680 F.3d 984 (7th Cir. 2012). A prison
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official may be liable “only if he knows that inmates face a substantial risk of serious harm and
disregards that risk by failing to take reasonable measures to abate it.” Farmer v. Brennan, 511
U.S. 825, 847 (1994). The allegations regarding Plaintiff’s confinement in a cell with no running
water for five days states a colorable Eighth Amendment claim.

Although the defendants did

something, letting the situation continue could be found to amount to deliberate indifference.
The alleged factual scenario raises questions that cannot be resolved at this early stage; Count 1
will, therefore, proceed.
Insofar as the complaint makes passing reference to Plaintiff being placed in a cell for
one day with no hot water, no Eighth Amendment claim is stated. Plaintiff does not link that
situation to the defendants. Moreover, there is no constitutional right to hot water. See Lopez v.
Robinson, 914 F.2d 486, 492 (4th Cir.1990) (“[I]t suffices to say that there is no clearly
established, sufficiently contoured, right to hot showers in prison.”); see, e.g., Hopkins v.
Klindworth, 556 F. App'x 497, 499 (7th Cir. 2014). For these reasons, no claim has been
recognized.
Disposition
IT IS HEREBY ORDERED that, for the reasons stated, COUNT 1, an Eighth
Amendment conditions of confinement claim, shall PROCEED against Defendant C/O
GROVES and C/O BOWERMAN.
The Clerk of Court shall prepare for Defendants C/O GROVES and C/O
BOWERMAN: (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.

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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.
Plaintiff’s motion for service of process at government expense (Doc. 4) is DENIED as
moot.
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, including consideration of Plaintiff’s motion
for recruitment of counsel (Doc. 3).

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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
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: November 2, 2015

s/J. Phil Gilbert
United States District Judge

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