Mitchell v. Dennison et al
Filing
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ORDER DISMISSING CASE with prejudice because Plaintiff's claim is frivolous. This dismissal shall count as one of Plaintiff's three allotted strikes within the meaning of 28 U.S.C. § 1915(g). Signed by Chief Judge Michael J. Reagan on 1/12/2017. (tjk)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DANNEL MAURICE MITCHELL,
Plaintiff,
vs.
DENNISON,
HUTCHISON,
PENDER,
OFFICER DURHAM,
LT. DURHAM,
ETIENNE,
S, ENGKERM
S, HILEMAN,
B. ALLARD, and
JOHN BALDWIN
Defendants.
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Case No. 16−cv–1189−MJR
MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
Plaintiff Dannel Mitchell, formerly an inmate in Shawnee Correctional Center, brings this
action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. Plaintiff seeks
monetary damages.
Plaintiff originally filed this suit on October 27, 2016. (Doc. 1). Prior to threshold
screening, Plaintiff filed a voluntary motion to dismiss the case, (Doc. 5), which the Court
granted on November 16, 2016. (Doc. 7). The dismissal was without prejudice. (Doc. 7). On
December 9, 2016, a mere three weeks later, Plaintiff filed an Amended Complaint. (Doc. 12).
The Court therefore re-opens this case, and screens the Amended Complaint pursuant to 28
U.S.C. § 1915A, which provides:
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(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
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 Amended 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 was transferred into cell 2.B.26 in June of 2016.
(Doc. 12, p. 4).
He
immediately noticed that he could not open and close the window from the inside because the
window was broken. Id. Plaintiff complained to 2 wing officers about the broken window. Id.
Plaintiff was especially concerned because he is HIV positive and has a compromised immune
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system; Plaintiff wanted to avoid being sick. Id. Plaintiff complained in June, because he wanted
to have the window working by fall. Id.
On October 2, 2016, Plaintiff asked Lt. Durham to close his window, but Lt. Durham told
Plaintiff it wasn’t his problem. Id. Plaintiff then asked Penden and Officer Durham to close the
window, but they ignored him. (Doc. 12, p. 5). Plaintiff then wrote letters to Dennison,
Hutchison, Etienne, Engler, Hileman, and Allard on October 3 and 4 regarding his window. Id.
Plaintiff alleges that the broken window exposed him to a cold environment. Id. He alleges that
he suffered from a severe cold, headaches, sleepless nights, numbed hands and feet, and extreme
pain. Id. He further alleges that he suffered from depression, bafflement, anxiety, hopelessness,
and helplessness. Id. Plaintiff asked for a winter hat, but never received on. (Doc. 12, p. 6).
Rule 201 of the Federal Rules of Evidence permits a Court to take judicial notice of “a
fact that is not subject to reasonable dispute because it: 1) is generally known within the trial
court’s territorial jurisdiction; or 2) can be accurately and readily determined from sources whose
accuracy cannot reasonably be questioned. See also Newcomb v. Brennan, 558 F.2d 825, 829
(7th Cir. 1977). The Court therefore on its own takes judicial notice of the historical weather
data for Vienna, Illinois in September and October 2016. In September 2016, the average high
temperature was in the 80s while the average low temperature was in the 60s. 1 Accuweather,
http://www.accuweather.com/en/us/vienna-il/62995/septemberweather/332726?monyr=9/1/2016 (last accessed January 6, 2017). In October 2016, the average
high temperature never dipped below 70 degrees and the average low temperature stayed
consistently around 50 degrees.
Accuweather, http://www.accuweather.com/en/us/vienna-
il/62995/october-weather/332726?monyr=10/1/2016 (last accessed January 6, 2017).
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All temperature data referred to in this order is in Fahrenheit degrees.
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In
particular, the high/low temperatures for October 2, 3, and 4 were 77/56 degrees, 77/53 degrees,
and 85/54 degrees, respectively. Id. On October 27, 2016, the day this suit was filed, the high
temperature was 67 degrees, and the low temperature was 47 degrees. Id.
Discussion
Based on the allegations of the Complaint, the Court finds it convenient to divide the pro
se action into 1 count. 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 – Defendants were deliberately indifferent to the unconstitutional condition of
confinement caused by the broken window in Plaintiff’s cell.
Plaintiff’s allegations are clearly frivolous, and his Amended Complaint will be
dismissed with prejudice.
Prisoners have an Eighth Amendment right to adequate shelter,
including a right to protection from cold. See Dixon v. Godinez, 114 F.3d 640, 642 (7th Cir.
1997). To assess whether cold cell temperatures constitute cruel and unusual punishment, courts
must consider factors including “the severity of the cold; its duration; whether the prisoner has
alternative means to protect himself from the cold; the adequacy of such alternatives; as well as
whether he must endure other uncomfortable conditions as well as cold.” Id. at 644; see also
Palmer v. Johnson, 193 F.3d 346 (5th Cir. 1999) (finding that exposure to extreme cold for 17
hours could constitute Eighth Amendment violation); Henderson v. DeRobertis, 940 F.2d 1055,
1058 (7th Cir. 1991) (finding that deprivation of blankets for four days in sub-freezing
temperatures could constitute Eighth Amendment violation). The cold need not present an
imminent threat to the inmate’s health to implicate the Eighth Amendment. See Dixon, 114 F.3d
at 642.
However, where an inmate fails to show that he was forced to remain in the cold for long
periods of time, or does not establish that he suffered unusual deprivations, his complaint may
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not rise to the level of a constitutional violation. See Mays v. Springborn, 575 F.3d 643, 648-49
(7th Cir. 2009) (prisoner who had hurt ears, numb hands, feelings of frostbite, and caught colds
because he was never issued adequate winter clothing showed only that he was subject to the
“usual discomforts of winter,” not the objectively serious harm required to state an Eighth
Amendment claim). In Hadley v. Peters, the Seventh Circuit upheld the dismissal of an inmate’s
claim where the evidence showed that the temperatures in the inmate’s area ranged from 29 to 68
degrees. 12 F.3d 1100 (table), 1993 WL 475407 at *1 (7th Cir. November 18, 1993).
Plaintiff’s allegations regarding the “cold environment” he experienced are completely
baseless. The average temperatures during the relevant time periods stayed between 50 and 80
degrees. Moreover, the average low temperatures during that time represented daily nighttime
temperatures; there were no days during the relevant time period where the temperature failed to
reach at least 61 degrees. At no time did the temperature dip into the kind of severe cold that
would raise constitutional issues. See Allen v. Ashcroft, 03-441-MJR, 2006 WL 1882672 at *6
(S.D. Ill. July 7, 2006) (finding Plaintiff’s allegations baseless where the lowest temperature
recorded was 41 degrees Fahrenheit). In fact, the temperature never fell below freezing at all.
And Plaintiff never alleged that he was deprived of blankets or clothing, suggesting that he had
adequate protection from the moderate to warm temperatures he experienced during the relevant
time period. He has alleged that he was not given a winter hat, but Plaintiff has also made that
allegation in another lawsuit and complained that the condition went back to 2015. (See Case
No. 16-cv-97, Doc. 1-1, p. 8). Plaintiff cannot raise duplicative claims in this lawsuit. Plaintiff
has also not alleged that there were other unconstitutional conditions of confinement that
exacerbated the cold.
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Although Plaintiff claims to have suffered a cold as a result of the failure to close the
window, according to the medical records submitted by Plaintiff, he had been experiencing cold
symptoms since September 7, 2016, a day where the high temperature was 97 degrees and the
low temperature was 70 degrees. (Doc. 12-2, p. 3). Simply put, Plaintiff’s allegations are
baseless, he has not adequately pleaded a claim based on unconstitutionally cold conditions
because all he has alleged is that his cell had an open window during a period of moderate to
warm temperatures, and the harm he alleges he suffered could not have been caused by the
temperature in his cell since he began experiencing cold symptoms when the temperature could
only be described as “hot.” This case will be dismissed with prejudice and Plaintiff will be
assessed a strike.
Pending Motions
On December 19, 2016, Plaintiff filed a Motion to Request Documents. (Doc. 15).
Apparently, that Motion was filed in all of Plaintiff’s pending cases. Magistrate Judge Williams
denied Plaintiff’s Motion in two cases, 16-cv-97-MJR-SCW and 16-cv-0487-MJR-SCW on the
grounds that Plaintiff had asked for and been granted a courtesy copy of his Complaint in case
no. 16-cv-97, and then was specifically instructed that would be a one-time occurrence. For the
sake of consistency and because the dismissal of this case likely renders Plaintiff’s request moot,
the Court DENIES Plaintiff’s request for a copy of his Complaint. (Doc. 15). The Court notes
that Plaintiff requested the Complaint, not the Amended Complaint. The Complaint is no longer
operative in this case because an Amended Complaint has been filed.
As the Court will dismiss this case with prejudice, Plaintiff’s request for an attorney is
MOOT. (Doc. 14).
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Disposition
IT IS HEREBY ORDERED that this case shall be DISMISSED with prejudice
because Plaintiff’s claim is frivolous. This dismissal shall count as one of Plaintiff’s three
allotted “strikes” within the meaning of 28 U.S.C. § 1915(g).
If Plaintiff wishes to appeal this Order, he may file a notice of appeal with this Court
within thirty days of the entry of judgment. FED. R. APP. 4(A)(4). If Plaintiff does choose to
appeal, he will be liable for the $505.00 appellate filing fee irrespective of the outcome of the
appeal. See FED. R. APP. 3(e); 28 U.S.C. § 1915(e)(2); Ammons v. Gerlinger, 547 F.3d 724, 72526 (7th Cir. 2008); Sloan v. Lesza, 181 F.3d 857, 858-59 (7th Cir. 1999); Lucien v. Jockisch,
133 F.3d 464, 467 (7th Cir. 1998). If the appeal is found to be non-meritorious, Plaintiff may
also incur another “strike.” A timely motion filed pursuant to Federal Rule of Civil Procedure
59(e) may toll the 30-day appeal deadline. 2 FED. R. APP. 4(a)(4).
The Clerk’s Office is DIRECTED to close this case and enter judgment accordingly.
IT IS SO ORDERED.
DATED: January 12, 2017
s/ MICHAEL J. REAGAN
U.S. District Judge
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A Rule 59(e) motion to alter or amend a judgment must be filed no later than 28 days after the
entry of the judgment. FED. R. CIV. P. 59(e).
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