West v. Migneron

Filing 6

IT IS HEREBY ORDERED that COUNT 17 fails to state a claim upon which relief may be granted. It is therefore DISMISSED without prejudice. IT IS FURTHER ORDERED that, should Plaintiff wish to proceed on his claim in COUNT 17, Plaintiff shall file his F irst Amended Complaint, providing facts tending to show that he suffered a sufficiently serious condition of confinement on or before November 28, 2016. (Amended Pleadings due by 11/28/2016). Signed by Judge Nancy J. Rosenstengel on 10/31/2016. (tjk)

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

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KENTES WEST,
Plaintiff,
vs.
MIGNERON,
Defendant.

–0989 NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff Kentes West, an inmate in Menard Correctional Center, brings this action for
deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. Plaintiff requests monetary
relief. (Doc. 2, p. 37-38). This case is now before the Court for a preliminary review of the
Complaint pursuant to 28 U.S.C. § 1915A, which provides:
(a) Screening – The court shall review, before docketing, if feasible or, in any
event, as soon as practicable after docketing, a complaint in a civil action in which a
prisoner seeks redress from a governmental entity or officer or employee of a
governmental entity.
(b) Grounds for Dismissal – On review, the court shall identify
cognizable claims or dismiss the complaint, or any portion of the complaint, if the
complaint–
(1) is frivolous, malicious, or fails to state a claim on which
relief may be granted; or
(2) seeks monetary relief from a defendant who is immune
from such relief.
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

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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 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).
Upon careful review of the Complaint and any supporting exhibits, the Court finds it
appropriate to exercise its authority under § 1915A; this action is subject to summary dismissal.
The Complaint
Plaintiff originally filed this suit in Case No. 16-cv-414-SMY on April 11, 2016. On
August 29, 2016, that Complaint underwent screening pursuant to § 1915A, at which time
certain claims were severed into distinct actions for failure to state related claims. Plaintiff’s
claim against Migneron was severed into this action.
As it relates to this claim, Plaintiff has alleged: “still being harassed I had a call pass for
psych health care and clothing room. C/O Migneron wouldn’t allow me to go on call passes.”
(Doc. 2, p. 36). He then states that mental health professional Myeres came to his door. (Doc. 2,
p. 36). That is the extent of the allegations in the Complaint relevant to this claim. Plaintiff’s
exhibits show that he had a call pass for lost laundry clothing exchanged dated February 19,
2016, which appears not to have been executed. (Doc. 2-2, p. 45).
Discussion
The Court’s previous Order divided up Plaintiff’s Complaint into separate Counts. (Doc.
1). Count 17 was split into this action:
Count 17:

Eighth Amendment Deliberate Indifference Claim against
Defendant Migneron for refusing to allow Plaintiff to leave his
cell on passes to obtain psychological care and clothing.

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Not all prison conditions trigger Eighth Amendment scrutiny–only deprivations of basic
human needs like food, medical care, sanitation, and physical safety. Rhodes v. Chapman, 452
U.S. 337, 346 (1981); see also James v. Milwaukee Cnty., 956 F.2d 696, 699 (7th Cir. 1992). In
order to prevail, a plaintiff must allege facts that, if true, would satisfy the objective and
subjective components applicable to all Eighth Amendment claims. McNeil v. Lane, 16 F.3d 123,
124 (7th Cir. 1993); see also Wilson v. Seiter, 501 U.S. 294, 302 (1991). The objective
component focuses on the nature of the acts or practices alleged to constitute cruel and unusual
punishment. Jackson v. Duckworth, 955 F.2d 21, 22 (7th Cir. 1992). The inquiry is whether the
conditions of confinement exceed the contemporary bounds of decency of a mature civilized
society. Id. The condition must result in unquestioned and serious deprivations of basic human
needs or deprive inmates of the minimal civilized measure of life’s necessities. Rhodes, 452 U.S.
at 347; accord Jamison-Bey v. Thieret, 867 F.2d 1046, 1048 (7th Cir. 1989); Meriwether v.
Faulkner, 821 F.2d 408, 416 (7th Cir. 1987).
In addition to showing objectively serious conditions, a plaintiff also must demonstrate
the subjective component of an Eighth Amendment claim. The subjective component is the
intent with which the acts or practices constituting the alleged punishment are inflicted. Jackson,
955 F.2d at 22. A prison official must have had a sufficiently culpable state of mind. Wilson, 501
U.S. at 298; see also McNeil v. Lane, 16 F.3d 123, 124 (7th Cir. 1994). The relevant state of
mind is deliberate indifference to inmate health or safety; the official must be aware of facts from
which an inference could be drawn that a substantial risk of serious harm exists, and he also must
draw the inference. See, e.g., Farmer v. Brennan, 511 U.S. 825, 837 (1994); Wilson, 501 U.S. at
303; Estelle v. Gamble, 429 U.S. 97, 104 (1976); Del Raine v. Williford, 32 F.3d 1024, 1032 (7th
Cir. 1994). The deliberate indifference standard is satisfied if the plaintiff shows that the prison

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official acted or failed to act despite the official’s knowledge of a substantial risk of serious
harm. Farmer, 511 U.S. at 842. A failure of prison officials to act in such circumstances suggests
that the officials actually want the prisoner to suffer the harm. Jackson v. Duckworth, 955 F.2d
21, 22 (7th Cir. 1992). It is well-settled that mere negligence is not enough. See, e.g., Davidson v.
Cannon, 474 U.S. 344, 347-48 (1986).
Plaintiff alleges that Migneron was deliberately indifferent because he refused to let him
go on two call passes. The first call pass at issue is for a psychological medical visit. This claim
fails for two reasons. First, Plaintiff has not provided facts making it plausible that he suffered
from a serious medical condition. He has not identified the reason for his mental health visit.
Without this information, Plaintiff has not adequately alleged that he suffers from a serious
medical need. Additionally, Plaintiff’s Complaint states that the mental health professional came
to his door. This suggests an absence of harm. If Plaintiff was able to meet with his mental health
professional, then he received the service the call pass was meant to provide. It does not offend
the Constitution for mental health to come to Plaintiff rather than the other way around. Plaintiff
is further informed that the Prison Litigation Reform Act prohibits a prisoner from collecting
compensatory damages for non-physical harm. See 42 U.S.C.1997e(e); Thomas v. Illinois, 697
F.3d 612, 614–15 (7th Cir.2012). Because he has not alleged that he suffered physical harm as a
result of this incident, Plaintiff’s ability to receive damages would be limited.
As to the second call pass for clothing, once again Plaintiff has not adequately stated a
claim. He has provided no facts explaining what need or condition the call pass was meant to
ameliorate. If Plaintiff was looking for lost clothes, as the call pass itself suggests, his remedy is
not federal court, but the Illinois Court of Claims. See Murdock v. Washington, 193 F.3d 510,
513 (7th Cir. 1999); Stewart v. McGinnis, 5 F.3d 1031, 1036 (7th Cir. 1993); 705 ILL. COMP.

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STAT. 505/8 (1995). But in the absence of allegations that Migneron was aware of a serious need
of Plaintiff’s and deliberately indifferent to that need, the cancellation of call passes states no
claim. Count 17 will be dismissed without prejudice. As set forth below, however, the Court will
give Plaintiff an opportunity to amend the complaint.
Disposition
IT IS HEREBY ORDERED that COUNT 17 fails to state a claim upon which relief
may be granted. It is therefore DISMISSED without prejudice.
IT IS FURTHER ORDERED that, should Plaintiff wish to proceed on his claim in
COUNT 17, Plaintiff shall file his First Amended Complaint, providing facts tending to show
that he suffered a sufficiently serious condition of confinement on or before November 28, 2016.
Plaintiff is ADVISED that the First Amended Complaint shall contain ONLY the claims
designated in this Order as Count 17, and shall include facts tending to show that Migneron was
deliberately indifferent to a serious need. Should the First Amended Complaint not conform to
these requirements, it shall be stricken and the entire case may be dismissed. Failure to file an
amended complaint may result in dismissal of this case with prejudice pursuant to Federal Rule
of Civil Procedure 41(b).
An amended complaint supersedes and replaces the original complaint, rendering the
original complaint 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 the original complaint.
Thus, the First Amended Complaint must stand on its own, without reference to any previous
pleading, and Plaintiff must re-file any exhibits he wishes the Court to consider along with the
First Amended Complaint.

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Service of process shall not commence until after the Court reviews the First Amended
Complaint pursuant to 28 U.S.C. § 1915A.
IT IS SO ORDERED.
DATED: October 31, 2016
___________________________
NANCY J. ROSENSTENGEL
United States District Judge

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