Kirk v. Campanella et al

Filing 27

ORDER re Motion to Amend/Correct 1 Complaint filed by Eric D. Kirk, Jr., (Doc. 19 ). The Clerk shall file Plaintiff's Amended Complaint and provide the waiver of service of process forms to Defendants Dillson, Love, and Ramage. Signed by Judge Staci M. Yandle on 7/25/2016. (mah).

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

ERIC D. KIRK, JR., M02211,

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Plaintiff,
vs.
J. CAMPANELLA, ROBIN DILLSON,
LARUE LOVE, and J. RAMAGE,
Defendants.

Case No. 16-CV-225-SMY-PMF

MEMORANDUM AND ORDER
Before the Court is Plaintiff Eric Kirk’s Motion for Leave to File a First Amended
Complaint (Doc. 19). Kirk, a prisoner at Vienna Correctional Center (“Vienna”), asserts that the
Defendants violated his Eighth Amendment rights. Kirk filed his initial Complaint on March 2,
2016 (Doc. 1). On April 4, 2016, the Complaint was screened by Judge Gilbert pursuant to 28
U.S.C. § 1915A (Doc. 8). Judge Gilbert found that Kirk articulated the following claims:
Count 1: Defendants Campanella, Dillson and Love subjected Kirk to unconstitutional
conditions of confinement in Building #19, in violation of the Eighth Amendment.
Count 2: Defendants Campanella, Dillson and Love denied Kirk adequate medical care
for the injuries he sustained to his neck, back and groin after falling in a puddle of water
in Building #19 on November 29, 2015 in violation of the Eighth Amendment.
Judge Gilbert dismissed Count 1 without prejudice and dismissed the claims in Count 2 against
Defendants Dillson and Love without prejudice. The only claim that survived screening was
Count 2 against Defendant Campanella.
Plaintiff now seeks leave to file an amended complaint pursuant to Rule 15(a)(2) of the
Federal Rules of Civil Procedure. Rule 15(a)(2) states that district courts “should freely give
leave when justice so requires.” The Supreme Court has held that leave to amend should
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generally be granted in the absence of “undue delay, bad faith or dilatory motive on the part of
the movant, repeated failure to cure deficiencies by amendments previously allowed [or] undue
prejudice to the opposing party[.]” Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230, 9 L.
Ed. 2d 222 (1962).
Here, Kirk’s proposed amended complaint would reinstate the previously dismissed
claims, add new claims and add new defendants. Finding that justice so requires, Kirk’s Motion
for Leave to Amend is GRANTED. Kirk’s Amended Complaint will now be screened pursuant
to 28 U.S.C. § 1915A.
Kirk’s proposed Amended Complaint includes the following claims:
Count 1: Defendants Campanella, Dillson and Love subjected Kirk to unconstitutional
conditions of confinement in Building #19, in violation of the Eighth Amendment.
Count 2: Defendants Campanella, Dr. Apostal, Dr. Ritz, Dr. Vinyard and Wexford
Healthcare Sources, Inc., denied Kirk adequate medical care for the injuries he sustained
to his neck, back and groin after falling in a puddle of water in Building #19 on
November 29, 2015 in violation of the Eighth Amendment.
Count 3: Retaliation claim against defendant J. Ramage for threatening to keep Kirk in
the Vienna segregation unit unless Kirk withdrew his grievances.
Kirk’s new claims will each be addressed in turn.
Kirk states that he is currently incarcerated at Vienna and the basis for Count 1 of his
Amended Complaint is that he was subjected to unconstitutional conditions of confinement while
housed in “Building 19.” Kirk asserts that while living in Building 19, he was forced to live with
standing water, a leaking roof, toxic mold in the bathroom, exposure to raw sewage and pest
infestations. Kirk alleges that Warden J. Campanella, Assistant Warden of Programs Robin
Dillson and Assistant Warden of Operations Larue Love failed to rectify these problems.
The Supreme Court has held that the Eighth Amendment entitles prisoners to “the
minimal civilized measure of life's necessities.” Farmer v. Brennan, 511 U.S. 825, 834, 114 S.
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Ct. 1970, 1977, 128 L. Ed. 2d 811 (1994). Improper sanitation, inadequate shelter and severe
pest infestations can all be objectively serious conditions that violate the Eighth Amendment.
Dixon v. Godinez, 114 F.3d 640, 642 (7th Cir. 1997); Antonelli v. Sheahan, 81 F.3d 1422, 1431
(7th Cir. 1996). Kirk shall therefore be allowed to proceed on Count 1 against Campanella,
Dillson and Love.
Count 2 of Kirk’s Amended Complaint sets forth an Eighth Amendment deliberate
indifference to serious medical needs claim. On November 29, 2015 Kirk was housed in
Building 19. Early that morning, Kirk left his bunk to use the restroom. As he proceeded to the
restroom, Kirk slipped and fell on a pool of standing water. Kirk landed hard on the ground,
injuring his neck and back. He was then transported to Heartland Regional Medical Center via
ambulance. Kirk asserts that he received improper medical treatment when he returned back to
Vienna and that Wexford Health Sources, Inc., Warden Campanella, Dr. Apostal, Dr. Ritz and
Dr. Vinyard were deliberately indifferent to his injuries.
“[D]eliberate indifference to serious medical needs of prisoners constitutes the
unnecessary and wanton infliction of pain proscribed by the Eighth Amendment.” Estelle v.
Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 291, 50 L. Ed. 2d 251 (1976) (internal cite and quote
omitted). However, Kirk provides very little factual support for these allegations. Although
district courts are obligated to liberally construe pro se pleadings, Erickson v. Pardus, 551 U.S.
89, 94, 127 S. Ct. 2197, 2200, 167 L. Ed. 2d 1081 (2007), Kirk’s deliberate indifference claims
can best be described as threadbare. Following the Supreme Court’s holdings in Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1965, 167 L. Ed. 2d 929 (2007) and Ashcroft v.
Iqbal, 556 U.S. 662, 677, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009), such bare bones
assertions fail to satisfy the Rule 8(a)(2) “short and plaint statement” requirement. Kirk will still

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be allowed to proceed against Defendant Campanella in Count 2, but Defendants Wexford
Health Sources, Inc., Dr. Apostal, Dr. Ritz and Dr. Vinyard shall be dismissed without prejudice.
In Count 3, Kirk states that he was placed in the Vienna segregation unit. While there,
Correctional Officer J. Ramage threatened to keep Kirk housed in segregation unless Kirk
withdrew some of his prison grievances. Kirk asserts that Ramage’s actions constituted unlawful
retaliation. This is sufficient to state a First Amendment retaliation claim, See Bridges v. Gilbert,
557 F.3d 541, 546 (7th Cir. 2009), and Kirk shall be allowed to proceed on Count 3 against
Defendant Ramage.
In sum, Kirk shall now proceed on his Amended Complaint with the following claims:
Count 1: Defendants Campanella, Dillson and Love subjected Kirk to unconstitutional
conditions of confinement in Building #19, in violation of the Eighth Amendment.
Count 2: Defendants Campanella denied Kirk adequate medical care for the injuries he
sustained to his neck, back and groin after falling in a puddle of water in Building #19 on
November 29, 2015 in violation of the Eighth Amendment.
Count 3: Retaliation claim against defendant J. Ramage for threatening to keep Kirk in
the Vienna segregation unit unless Kirk withdrew his grievances.
The Clerk shall file Kirk’s Amended Complaint and provide the waiver of service of
process forms to Defendants Dillson, Love and Ramage.
IT IS SO ORDERED.
DATED: July 25, 2016
s/ Staci M. Yandle
STACI M. YANDLE
United States District Judge

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