Smith et al v. Bond County Jail et al

Filing 17

IT IS HEREBY ORDERED that plaintiffs SERGIO SALTER, DAVID ROBERTSON, DEVELL CURRY, BAYLEIGH HARTMAN, and PATRICIA HOXSEY are TERMINATED as plaintiffs in this action. IT IS FURTHER ORDERED that the following additional plaintiffs are TERMINATED as parties in this action: LISA NIEPERT and MICHELLE WILLIAMS. The Clerk is DIRECTED to open a new case for both of these plaintiffs. Each plaintiff is GRANTED leave to file a First Amended Complaint in the case opened in his or her name on or before April 14, 2017. Should a plaintiff fail to file his or her First Amended Complaint within the allotted time or consistent with the instructions set forth in this Order, his or her entire case shall be dismissed with prejudice and he or she may incur a strike. (Amended Pleadings due by 4/14/2017). Signed by Judge J. Phil Gilbert on 3/17/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JEREMY K. SMITH,
SERGIO SALTER,
DAVID ROBERTSON,
DEVELL CURRY,
LISA NIEPERT,
BAYLEIGH HARTMAN,
MICHELLE WILLIAMS
and PATRICIA HOXSEY,
Plaintiffs,
vs.
BOND COUNTY JAIL,
and JEFF BROWN,
Defendants.

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Case No. 17-cv-006-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
This matter is, once again, before the Court for case management and for preliminary
review of the Complaint pursuant to 28 U.S.C. § 1915A. The action was originally filed on
January 6, 2017 by eight detainees at Bond County Jail (“Jail”) in Greenville, Illinois. (Doc. 1).
The Court entered a preliminary order in this matter on February 2, 2017. (Doc. 7). In it, each
plaintiff, aside from the lead plaintiff Jeremy Smith, was ordered to advise the Court in writing,
no later than March 6, 2017, whether he or she wished to pursue his or her claims in group
litigation. Id. Two of the original plaintiffs, Lisa Niepert1 and Michelle Williams, have asked to
remain parties to this group action. (See Docs. 14, 16). The remaining five plaintiffs failed to
respond to the Court’s preliminary order.
1

Given discrepancies in the way Plaintiff Lisa Niepert’s name is spelled in the Complaint, her name was
at one point spelled incorrectly on CM/ECF. It has since been corrected to “Lisa Niepert,” though some
remaining docket entries may reflect the incorrect spelling of “Lisa Neipert.”

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As an initial matter, the Court concludes that joinder is not appropriate. See FED. R. CIV.
P. 20(a)-(b), 21; Chavez v. Illinois State Police, 251 F.3d 612, 632 (7th Cir. 2001). Therefore,
each remaining plaintiff will be required to pursue his or her claims in a separate action. But
before doing so, each remaining plaintiff must file an amended complaint in his or her separate
case because the original complaint (Doc. 1) does not survive screening under 28 U.S.C. §
1915A.
Background
The Complaint was filed by 8 individuals who were or are in custody at the Jail. (Doc. 1)
Together, they set forth claims against the Sheriff of Bond County Illinois, Jeff Brown, and the
Jail itself. (Doc. 1, p. 1). In the Complaint, the plaintiffs claim that there is black mold in the
“bullpen” of the Jail as well as in the living areas of the female plaintiffs. (Doc. 1, p. 3). They
also claim that “living in black mold is dangerous to their lives” and that they have symptoms of
sneezing, coughing, headaches, nausea, and severe stomach cramps and diarrhea. (Doc. 1, p. 3).
The plaintiffs seek monetary damages and permanent injunctive relief. (Doc. 1, p. 4).
The Court entered a preliminary order in this matter on February 2, 2017. (Doc. 7).
There, the Court explained the difficulties associated with group litigation. (Doc. 7, pp. 2-4).
The Court warned the plaintiffs of the risks and costs inherent in such proceedings.

Id.

Plaintiffs were then given an opportunity to withdraw from the group litigation. See Boriboune
v. Berge, 391 F.3d 852 (7th Cir. 2004).
Every plaintiff was ordered to advise the Court in writing whether he or she wished to
continue as a plaintiff in the group action on or before March 6, 2017. (Doc. 7, p. 6). Any
plaintiff who wanted to pursue his or her claims individually in a separate lawsuit was ordered to
so advise the Court in writing by the same deadline, and the Court would sever that plaintiff’s

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claims into a new action and assess a filing fee in the severed case. Id. The plaintiffs were
informed that the only way to avoid the obligation to pay a filing fee was to request dismissal
from the action in writing by this deadline. The Court explicitly stated that “[a]ny plaintiff who
simply does not respond to this Order on or before March 6, 2017 will be obligated to pay the
filing fee and will also be dismissed from this action for want of prosecution and/or failure to
comply with a court order under Federal Rule of Civil Procedure 41(b).”

(Doc. 7, p. 7)

(emphasis in original).
Plaintiffs Lisa Niepert (Docs. 15, 16) and Michelle Williams (Doc. 14) indicated that
they wish to proceed together in this group litigation.

Plaintiffs Sergio Salter, David

Robertson, Devell Curry, Bayleigh Hartman, and Patricia Hoxsey failed to respond to the
Court’s order by the deadline, thereby triggering an obligation to pay the filing fee for this action
despite being dismissed for want of prosecution and/or failure to comply with a court order under
Federal Rule of Civil Procedure 41(b). Lead plaintiff Jeremy Smith was not required to respond
in order to remain in this action. Below, the Court will discuss why group litigation of the
plaintiffs’ claims is inappropriate.
Merits Review Under 28 U.S.C. § 1915A
The Complaint is now subject to preliminary review 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.

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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, 1026-27 (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).
Based on the allegations of the Complaint, the Court finds it convenient to designate a
single count in this pro se action. The parties and the Court will use this designation in all future
pleadings and orders, unless otherwise directed by a judicial officer of this Court.
Count 1 –

Unconstitutional conditions of confinement claim against defendants for
subjecting plaintiffs to health risks from the black-mold contamination in
the bullpen of the Jail and living areas of the female plaintiffs.

The Complaint does not survive review under § 1915A, and it shall be dismissed. Any other
intended claim that has not been recognized by the Court is considered dismissed with prejudice
as inadequately pleaded under the Twombly pleading standard.
In a case involving conditions of confinement in a prison, two elements are required to
establish a violation of the Eighth Amendment’s cruel and unusual punishments clause. First, an
objective element requires a showing that the conditions deny the inmate “the minimal civilized
measure of life’s necessities,” creating an excessive risk to the inmate’s health or safety. Farmer
v. Brennan, 511 U.S. 825, 834 (1994). The second requirement is a subjective element—
establishing a defendant’s culpable state of mind, which is deliberate indifference to a substantial

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risk of serious harm to the inmate from those conditions. Farmer, 511 U.S. at 837, 842.
Likewise, for ‘cruel and unusual punishment’ claims brought by a pretrial detainee, the plaintiff
must show that the jail officials knew that the plaintiff was at risk of serious harm, and that they
disregarded that risk by failing to reasonably discharge the risk. Grieveson v. Anderson, 538
F.3d 763, 771-72, 777-79 (7th Cir. 2008).
A deprivation of a basic human need—food, medical care, sanitation, or physical
safety—is necessary to establish the objective component of unconstitutional conditions of
confinement claims.

Rhodes v. Chapman, 452 U.S. 337, 346 (1981); see also James v.

Milwaukee Cnty., 956 F.2d 696, 699 (7th Cir. 1992). Notably, a claim may arise from exposure
to mold that causes physiological problems. See Budd v. Motley, 711 F.3d 840, 842 (7th Cir.
2013) (allegations of exposure to mold, along with overcrowding, lack of adequate beds, broken
windows, cracked toilets, a broken heating and cooling system, and denial of adequate
recreation, stated claims under the Due Process Clause). Assuming the Complaint satisfies the
objective component, though more detail regarding the constitutional deprivations would be
advisable in amended pleadings, the allegations of the Complaint still focus entirely on the
objective component of the claim.
To survive preliminary review, the Complaint must also satisfy the subjective
requirement by suggesting that Brown exhibited deliberate indifference to the conditions of the
plaintiffs’ confinement. Section 1983 creates a cause of action based on personal liability and
predicated upon fault; thus, “to be liable under [Section] 1983, an individual defendant must
have caused or participated in a constitutional deprivation.” Pepper v. Village of Oak Park, 430
F.3d 809, 810 (7th Cir. 2005) (citations omitted). A plaintiff may not attribute any of his or her
constitutional claims to a high-ranking official by relying on the doctrine of respondeat superior,

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or vicarious liability; “the official must actually have participated in the constitutional
wrongdoing.” Antonelli v. Sheahan, 81 F.3d 1422, 1428 (7th Cir. 1996) (citing Cygnar v. City of
Chicago, 865 F.2d 827, 947 (7th Cir. 1989)). However, where a complaint describes potentially
systemic conditions, such as those arising from a policy, custom, or widespread practice that
results in a constitutional deprivation, the Court may infer personal knowledge on the part of a
high-ranking official like Brown, as sheriff of Bond County. See Monell v. Department of Soc.
Servs., 436 U.S. 658, 694 (1978); Estate of Sims ex rel. Sims v. County of Bureau, 506 F.3d 509,
514-15 (7th Cir. 2007). See also Doyle v. Camelot Care Centers, Inc., 305 F.3d 603, 615 (7th
Cir. 2002) (allegations that an agency’s senior officials were personally responsible for creating
the policies, practices and customs that caused the constitutional deprivations suffice to
demonstrate personal involvement).
The Court finds that the subjective component of this claim is not satisfied. Brown is
only mentioned in the statement of claim in the plaintiffs’ assertion that “Sheriff Jeff Brown and
the Bond County Jail are responsible for the safety and well-being of each and every inmate in
custody.” (Doc. 1, p. 3). Plaintiffs do not allege that they took steps to put Brown on notice of
the objectionable conditions or that they asked Brown to address the conditions. Moreover, the
Complaint includes no suggestion that Brown was aware of the conditions the plaintiffs faced,
based on their systemic nature or a policy or custom of ignoring such complaints.
Bond County Jail is also named as a defendant but shall be dismissed from this action. A
jail is not a “person” under § 1983. Smith v. Knox Cnty. Jail, 666 F.3d 1037, 1040 (7th Cir.
2012); Powell v. Cook Cnty. Jail, 814 F. Supp. 757, 758 (N.D. Ill. 1993). It is not a legal entity
in the first place and is therefore not amenable to suit. But even if the proper legal entity was
named instead, the case law under § 1983 imposes additional hurdles to actions against

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governmental agencies that the plaintiffs have not cleared. See, e.g., Monell v. Dep't of Soc.
Servs. of City of New York, 436 U.S. 658, 694 (1978). Accordingly, the Jail shall be dismissed
with prejudice from this case.
The plaintiffs’ conditions of confinement claim against the defendants does not survive
screening under § 1915A and shall be dismissed without prejudice. Each remaining plaintiff will
be granted leave to file an amended complaint in his or her case, according to the instructions
and deadlines set forth in the disposition.
Joinder of Parties
Before this matter proceeds, the Court must determine whether joinder of the parties is
appropriate going forward. Pursuant to Rule 20, district courts can accept joint complaints filed
by multiple plaintiffs if the criteria for permissive joinder are satisfied. See FED. R. CIV. P. 20;
Boriboune, 391 F.3d at 855. Rule 20 authorizes individuals to join as plaintiffs in bringing a
single action, if: (A) they “assert any right to relief jointly, severally, or in the alternative with
respect to or arising out of the same transaction, occurrence, or series of transactions or
occurrences; and (B) any question of law or fact common to all plaintiffs will arise in the
action.” FED. R. CIV. P. 20(a)(1)(A)-(B) (emphasis added).
District courts are given “wide discretion . . . concerning the joinder of parties.” See
Chavez, 251 F.3d at 632 (citing Intercon Research Assoc., Ltd. v. Dresser Indus., Inc., 696 F.2d
53, 56 (7th Cir. 1982)). The Seventh Circuit has held that “this discretion allows a trial court to
consider, in addition to the requirements of Rule 20, ‘other relevant factors in a case in order to
determine whether the permissive joinder of a party will comport with the principles of
fundamental fairness.’” Chavez, 251 F.3d at 632 (quoting Desert Empire Bank v. Ins. Co. of N.
Am., 623 F.2d 1371, 1375 (9th Cir. 1980)). And if joinder would create “prejudice, expense, or

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delay” the court may deny a request for joinder. Id. (citation omitted).
The Court finds that joinder of the parties in a single action going forward is not
appropriate. How the alleged facts apply to each individual plaintiff is bound to differ, so each
plaintiff’s particular situation likely involves a unique “transaction, occurrence, or series of
transactions or occurrences.” FED. R. CIV. P. 20(a)(1)(A). For example, Smith, as a male, likely
was never exposed to one of the two locations the Complaint alleges there was mold–the female
inmates’ living area. This fact calls into question the level of Smith’s mold exposure compared
to Niepert and Williams. Further, without allegations regarding Niepert’s and Williams’ specific
exposure to the mold and general living conditions, there is no guarantee they suffered the same
symptoms or the same degree of exposure to mold; one may have had mold throughout her cell
while the other was exposed to a negligible amount the majority of the time.
Even if Rule 20 is satisfied, the Court can still require the plaintiffs to proceed separately
with their claims if joinder would cause “prejudice, expense, or delay.” See Chavez, 251 F.3d at
632; FED. R. CIV. P. 20(b). Allowing the plaintiffs to proceed together will foreseeably delay,
complicate, and increase the costs of litigating otherwise straightforward claims, resulting in
prejudice to the plaintiffs and defendants. At the time of filing this lawsuit, the plaintiffs were in
the Jail. Soon after commencing the action, several of them seem to have transferred out of the
Jail. (See Docs. 9, 12, 13). Smith, for example, no longer appears to be housed in the Jail, as
mail sent from this Court to the Jail address provided by him was returned as undeliverable on
February 22, 2017. (Doc. 13). The difficulties associated with group litigation are compounded
by the fact that, of the three remaining plaintiffs, at least one, acting as the lead plaintiff, is now
no longer housed under the same roof, hindering their ability to communicate, make decisions
regarding litigation, prepare group pleadings, or respond to deadlines.

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Given these

considerations, the Court finds that joinder is not appropriate going forward.
The Court looks to Rule 21 of the Federal Rules of Civil Procedure for guidance on how
to proceed. Rule 21 provides that “[m]isjoinder of parties is not a ground for dismissing an
action. On motion or on its own, the court may at any time, on just terms, add or drop a party.
The Court may also sever any claim against a party.” FED. R. CIV. P. 21. Consistent with Rule
21, the Court shall enter an order in the disposition below that allows each remaining plaintiff to
proceed in a separate action, as follows:
A. Jeremy K. Smith, who has been identified as the “lead plaintiff” in this case, shall
proceed as the only plaintiff in this action going forward, and he shall be obligated to
pay a filing fee for this action, or proceed in forma pauperis if his Motion for Leave
to Proceed in forma pauperis (Doc. 2) is granted;
B. Lisa Niepert and Michelle Williams shall be terminated as plaintiffs in this action,
and no filing fee for this action shall be assessed. New cases shall be opened for both
of them. Each shall separately proceed with Count 1 in her newly-opened case, and
each shall pay a filing fee in that case, or proceed in forma pauperis if her respective
Motion for Leave to Proceed in forma pauperis is granted, whether or not she chooses
to pursue her claims any further.
C. Sergio Salter, David Robertson, Devell Curry, Bayleigh Hartman, and Patricia
Hoxsey shall be terminated as parties to this action for failure to prosecute their
claims and/or respond to the Court’s Order (Doc. 7) dated February 2, 2017. FED. R.
CIV. P. 41(b). They shall remain obligated to pay a filing fee, but they shall not
receive a “strike” under 28 U.S.C. § 1915(g). Their claims are considered dismissed
with prejudice.
Pending Motions
Plaintiff Smith has filed a Motion for Leave to Proceed in forma pauperis (Doc. 2),
which will be addressed in a separate order of this Court in this action.
Plaintiff Michelle Williams has filed a Motion for Leave to Proceed in forma pauperis
(Doc. 14), which will be addressed in a separate order of the Court in her respective case.
Plaintiff Lisa Niepert has filed a Motion for Leave to Proceed in forma pauperis (Doc.
15), which will be addressed in a separate order of the Court in her respective case.
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Disposition
IT

IS

HEREBY

ORDERED

that

plaintiffs

SERGIO

SALTER,

DAVID

ROBERTSON, DEVELL CURRY, BAYLEIGH HARTMAN, and PATRICIA HOXSEY
are TERMINATED as plaintiffs in this action. Their claims are DISMISSED with prejudice
for want of prosecution and/or for failure to comply with a court order under Federal Rule of
Civil Procedure 41(b). This dismissal shall not count as a “strike” under 28 U.S.C. § 1915(g).
However, each plaintiff remains obligated to pay the filing fee for this action.2
IT IS FURTHER ORDERED that the following additional plaintiffs are, for the reasons
set forth above, TERMINATED as parties in this action: LISA NIEPERT and MICHELLE
WILLIAMS. The Clerk is DIRECTED to open a new case for both of these plaintiffs,
captioning them as follows and filing the following documents in each case (and any others
listed below): (1) this memorandum and order; (2) the Complaint (Doc. 1); and (3) the
preliminary order (Doc. 7):
A. LISA NIEPERT, Plaintiff v. JEFF BROWN, Defendant;3 and
B. MICHELLE WILLIAMS, Plaintiff v. JEFF BROWN, Defendant;4

The Clerk is DIRECTED to change the caption of this case to: JEREMY K. SMITH,
Plaintiff v. JEFF BROWN, Defendant. Only Plaintiff Smith will proceed in this action.
Each case shall be tracked so that it undergoes any further preliminary review under 28
U.S.C. § 1915A that is deemed necessary (including review of any amended complaints), if only

2

Effective May 1, 2013, the filing fee for a civil case increased from $350.00 to $400.00, by the addition
of a new $50.00 administrative fee for filing a civil action, suit, or proceeding in a district court. See
Judicial Conference Schedule of Fees - District Court Miscellaneous Fee Schedule, 28 U.S.C. § 1914, No.
14. A litigant who is granted IFP status, however, is exempt from paying the new $50.00 fee.
3
In addition to those documents already listed, the Clerk is DIRECTED to file the following document in
this case: (1) IFP Motion (Doc. 15).
4
In addition to those documents already listed, the Clerk is DIRECTED to file the following document in
this case: (1) IFP Motion (Doc. 14).

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to allow for the entry of the orders addressing each plaintiff’s pauper status, appointment of
counsel, and other preliminary matters.
IT IS FURTHER ORDERED that the Complaint (Doc. 1) is DISMISSED without
prejudice for failure to state a claim upon which relief may be granted in this case and in each
newly-severed case.
IT IS FURTHER ORDERED that defendant BOND COUNTY JAIL is DISMISSED
with prejudice from this action.
Each plaintiff is GRANTED leave to file a “First Amended Complaint” in the case
opened in his or her name on or before April 14, 2017. Should a plaintiff fail to file his or her
First Amended Complaint within the allotted time or consistent with the instructions set forth in
this Order, his or her entire case shall be dismissed with prejudice and he or she may incur a
“strike.” FED. R. CIV. P. 41(b). See generally Ladien v. Astrachan, 128 F.3d 1051 (7th Cir.
1997); Johnson v. Kamminga, 34 F.3d 466 (7th Cir. 1994). The First Amended Complaint is
subject to preliminary review pursuant to 28 U.S.C. § 1915A.
When each plaintiff prepares his or her First Amended Complaint, it is strongly
recommended that he or she use the forms designed for use in this District for such actions. He
or she should label the form, “First Amended Complaint,” and he or she should use the case
number for the action opened in his or her name. Only Plaintiff Jeremy Smith should use this
case number.
The pleading shall present each claim in a separate count, and each count shall specify,
by name, each defendant alleged to be liable under the count, as well as the actions alleged to
have been taken by that defendant. Each plaintiff should attempt to include the facts of his or her
case in chronological order, inserting any defendant’s name where necessary to identify the

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actors. Plaintiffs should refrain from filing unnecessary exhibits. Each plaintiff should include
only related claims in his or her new complaint. Claims found to be unrelated to one another, or
unrelated to the conditions of confinement claim, will be severed into new cases, new case
numbers will be assigned, and additional filing fees will be assessed. To enable each plaintiff to
comply with this order, the CLERK is DIRECTED to mail each remaining plaintiff a blank
civil rights complaint form.
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 each plaintiff must re-file any exhibits he or she wishes the Court to consider along
with the First Amended Complaint. The First Amended Complaint is subject to review pursuant
to 28 U.S.C. § 1915A.
Each plaintiff is further ADVISED that his or her obligation to pay the filing fee was
incurred at the time this action was filed, thus the filing fee remains due and payable, regardless
of whether the plaintiff elects to file an amended complaint in his or her case. See 28 U.S.C. §
1915(b)(1); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998). Plaintiffs Jeremy Smith,
Sergio Salter, David Robertson, Devell Curry, Bayleigh Hartman, and Patricia Hoxsey will be
assessed a filing fee in this action. Plaintiffs Lisa Niepert and Michelle Williams will be
assessed filing fees in their new cases.
Finally, each plaintiff is ADVISED that he or she 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 or her whereabouts. This shall be done in writing

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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: March 17, 2017
s/J. Phil Gilbert
United States District Judge

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