Hodge, Jr. v. Duncan et al

Filing 10

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Signed by Judge Nancy J. Rosenstengel on 8/11/2016. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
LEWIS E. HODGE, Jr., #R-20175,

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Plaintiff,
vs.
STEVEN DUNCAN,
FITCH, DANKS, McCARTHY,
and JOHN DOE 1,
Defendants.

Case No. 16-cv-00241-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff

Lewis

Hodge,

Jr.,

an

inmate

who

is

currently

incarcerated

at

Lawrence Correctional Center (“Lawrence”), brings this pro se action under 42 U.S.C. § 1983
for alleged violations of his constitutional rights (Doc. 1). Hodge claims that he was subjected to
unbearable living conditions when the toilet in his cell broke, he filed complaints about the issue
numerous times, and it was not fixed for at least a month. In connection with these claims,
Hodge sues Steven Duncan (warden), Finch (correctional officer), Danks (correctional officer),
McCarthy (lieutenant), and John Doe 1 (plumber) for monetary damages.
This case is now before the Court for a preliminary review of the complaint pursuant to
28 U.S.C. § 1915A. Under Section 1915A, the Court is required to promptly screen prisoner
complaints to filter out nonmeritorious claims. 28 U.S.C. § 1915A(a). The Court must 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). The Court is reviewing Hodge’s first amended complaint, as
his initial complaint was dismissed for failure to state a claim (Docs. 1, 8, 9).
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The Complaint
Hodge’s sole claim is that the toilet in his cell stopped working on August 8, 2015 (Doc.
9 at 6). He informed Defendant Danks of the issue and got no assistance, either on the day of the
break, or later when he sought a cell change from Danks (Id.). On August 9, 2015, Hodge sought
assistance from Defendant Fitch, who also denied help at that time, or later when he sought a cell
change (Id.). On August 18, 2015, Defendant McCarthy told Hodge that nothing would be done
due to budget constraints (Id.). Hodge wrote grievances about the issue, including one addressed
to Defendant Duncan on August 25, 2015 (Id.). On August 27, 2015, Warden Duncan came to
see the toilet but said he could not do anything to help (Id.). Hodge and his cellmate were moved
to a new cell on September 8, 2015 (Id.). Maintenance later fixed the toilet without the use of
tools (Id.). Hodge complains that for the duration of a month, from August 8 through September
8, 2015, he and his cellmate had to eat and live in a cell with a broken toilet (Id.).
Discussion
To state a claim for a violation of the Eighth Amendment’s cruel and unusual
punishments clause, plaintiffs are required to make a two part showing. First, a plaintiff must
identify an objective condition that denied him “the minimal civilized measure of life’s
necessities,” creating an excessive risk of harm to his health or safety. Farmer v. Brennan, 511
U.S. 825, 834 (1994). Second, a plaintiff must show a subjective component—that the defendant
had a culpable state of mind, which is deliberate indifference to a substantial risk of serious harm
to the inmate from the objectively serious condition. Id. at 842. Unsanitary conditions may state
a claim under the Eighth Amendment. See Budd v. Motley, 711 F.3d 840, 842 (7th Cir. 2013)
(finding that unhygienic conditions combined with a denial of cleaning supplies could state a
claim for relief); Vinning-El v. Long, 482 F.3d 923, 924 (7th Cir. 2007) (finding that a prisoner

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held in a cell with no working sink or toilet, water on the floor and feces on the wall may state a
claim for relief).
Here, Hodge identified an unsanitary condition—a broken toilet—that may constitute an
objectively serious condition. As to the subjective component, he has alleged that he personally
asked Defendants Danks, Fitch, McCarthy and Warden Duncan for assistance. These individuals
apparently saw the condition and denied assistance. A week after Defendant Duncan saw the
condition, Hodge was moved to a new cell, though there is no indication why the move occurred.
Taking Hodge’s allegation as true—that these defendants observed the broken toilet in the cell
and did not act—Hodge may also have established deliberately indifferent behavior by the
defendants. Accordingly, Hodge’s complaint will be allowed to proceed against Defendants
Danks, Fitch, McCarthy, and Duncan. 1
By contrast, the complaint will not be allowed to proceed against Defendant John Doe 1,
the plumber, because Hodge does not allege that this defendant subjectively intended for the
Hodge to continue living in potentially unsanitary conditions. The only mention of this unnamed
defendant suggests that he or she observed the toilet after Hodge had been moved to another cell,
thus it was impossible for the unnamed defendant to act in deliberate indifference while Hodge
was living in the cell. Based on the facts presented, Defendant John Doe 1 will be dismissed
without prejudice from this action for failure to state a claim upon which relief can be granted.
See Pepper v. Village of Oak Park, 430 F.3d 805, 810 (7th Cir. 2005) (“to be liable under
[Section] 1983, an individual defendant must have caused or participated in a constitutional
deprivation”).

1

It should be noted that Warden Duncan is technically a supervisor, and supervisory liability does not exist in the
Section 1983 context. See Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001). The facts presented suggest,
however, that Hodge intends to pursue a deliberate indifference claim against Duncan for actions he personally took,
as opposed to actions he took in supervising his subordinates.

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Pending Motions
Hodge has filed a Motion for Recruitment of Counsel (Doc. 3) which shall be
REFERRED to United States Magistrate Judge Donald G. Wilkerson for a decision. The
Motion for Service of Process at Government Expense (Doc. 4) is GRANTED; service is
ordered below.
Disposition
IT IS ORDERED that this action shall receive further review as to DEFENDANTS
DANKS, FITCH, McCARTHY, and DUNCAN. The complaint shall be DISMISSED
without prejudice as to DEFENDANT JOHN DOE 1 for failure to state a claim.
The Clerk of Court shall prepare for DEFENDANTS DANKS, FITCH, McCARTHY,
AND DUNCAN: (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 Hodge. 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.
With respect to a defendant who no longer can be found at the work address provided by
Hodge, 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

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disclosed by the Clerk.
Hodge 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.
Hodge 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 Donald G. Wilkerson for further pre-trial proceedings, including a decision on
Hodge’s Motion for Recruitment of Counsel (Doc. 3), and for Service of Process at Government
Expense (Doc. 4). 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
parties consent to such a referral.
If judgment is rendered against Hodge, and the judgment includes the payment of costs
under § 1915, Hodge will be required to pay the full amount of the costs, regardless of the fact
that his application to proceed in forma pauperis has been granted. See 28 U.S.C. §
1915(f)(2)(A).
Hodge 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,

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who shall pay therefrom all unpaid costs taxed against plaintiff and remit the balance to plaintiff.
Local Rule 3.1(c)(1).
Finally, Hodge 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: August 11, 2016

NANCY J. ROSENSTENGEL
United States District Judge

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