Firkins v. McLaurin et al
Filing
10
IT IS HEREBY ORDERED that the Amended Complaint is DISMISSED without prejudice for failure to state a claim upon which relief may be granted. IT IS FURTHER ORDERED that ST. CLAIR COUNTY JAIL is DISMISSED with prejudice from this action. IT IS FURTHER ORDERED that, should he wish to proceed with this case, Plaintiff shall file his Second Amended Complaint, stating any facts which may exist to support an unconstitutional strip search, unconstitutional conditions of confinement, or First Amendmen t access to mail/courts claim, within 28 days of the entry of this order (on or before May 2, 2017). Should Plaintiff fail to file his Second Amended Complaint within the allotted time or consistent with the instructions set forth in this Order, the entire case shall be dismissed with prejudice for failure to comply with a court order and/or for failure to prosecute his claims. (Amended Pleadings due by 5/2/2017). Signed by Judge J. Phil Gilbert on 4/3/2017. (tjk)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JACK L. FIRKINS, #315562,
Plaintiff,
vs.
PHILLIP MCLAURIN,
ST. CLAIR COUNTY JAIL, and
CHRIS HEARNIS,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
Case No. 17−cv–195−JPG
MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff Jack Firkins, an inmate in St. Clair County Jail (“Jail”), brings this action for
deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983.
In his Amended
Complaint (Doc 9), Plaintiff claims the defendants subjected him to an improper search and
unconstitutional conditions of confinement and deprived him of writing materials and access to
his attorney. This case is now before the Court for a preliminary review of the Amended
Complaint1 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
1
An amended complaint supersedes and replaces the original complaint, rendering it void. See Flannery
v. Recording Indus. Ass’n of Am., 354 F.3d 632, 638 n.1 (7th Cir. 2004). This Court’s § 1915A review
will therefore exclusively focus on Plaintiff’s Amended Complaint (Doc. 9) filed March 23, 2017, rather
than Plaintiff’s original Complaint (Doc. 1) filed February 23, 2017.
1
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
In his Amended Complaint (Doc. 9), Plaintiff makes the following allegations:
on
January 8, 2017, when Plaintiff asked to be sent for a visit that was scheduled for 2:30pm, he
was instead taken to booking where he was strip searched by officer Chris Hearnis, along with
three other male inmates. (Doc. 9, p. 5). When Plaintiff asked why he was being strip searched,
Hearnis responded that he was “just doing [his] job” and that he “got some information.” Id.
Plaintiff missed his scheduled visit because of this search. Id.
During his time at the Jail, Plaintiff was subjected to poor living conditions, including
mold in the showers, paint peeling and cracks on the walls and ceilings, and dust in the
2
ventilation system. (Doc. 9, p. 5). Plaintiff has not been given a second uniform, so he has to
walk in a blanket while he waits for his uniform to be laundered. Id. There is also “inadequate
portions of food on trays” and inmates “are charged too much for commissary and Aramark food
services.”
Id.
Plaintiff was unable to purchase writing paper or stamped envelopes for
correspondence for two weeks, from March 6, 2017 to March 19, 2017. (Doc. 9, p. 6). During
this time, he was also not able to use the telephone to call an attorney. Id. He filed a complaint
at the Jail regarding these issues, but has not received a response. Id.
Plaintiff seeks monetary damages from the defendants. (Doc. 9, p. 6).
Discussion
Based on the allegations of the Amended Complaint, the Court finds it convenient to
designate three counts in this pro se action. 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 subjected Plaintiff to an unconstitutional strip search on
January 8, 2017 in violation of the Fourth and Fourteenth Amendments.
Count 2 –
Defendants subjected Plaintiff to unconstitutional conditions of
confinement while he was incarcerated at St. Clair County Jail in violation
of the Fourteenth Amendment.
Count 3 –
Defendants violated Plaintiff’s constitutional rights by preventing him
from purchasing writing paper, purchasing stamped envelopes, and using
the telephone to call his attorney from March 6, 2017 to March 19, 2017
and denying him access to the law library for 4 weeks.
As discussed in more detail below, Counts 1, 2, and 3 will be dismissed without
prejudice. Notably, Plaintiff has indicated on his Amended Complaint that he intends to also
bring a claim under the Federal Tort Claims Act. (Doc. 9, p. 1). The FTCA provides jurisdiction
for suits against the United States regarding torts committed by federal officials, not state
officials. The defendants named herein are not federal officials. Therefore, Plaintiff’s claim
3
does not fall within the jurisdiction of the FTCA. Any FTCA claim Plaintiff sought to bring in
this action is therefore dismissed with prejudice. Any other intended claim that has not been
recognized by the Court is also considered dismissed with prejudice as inadequately pleaded
under the Twombly pleading standard.
Defendants
Before analyzing Plaintiff’s allegations, the Court finds it appropriate to address
Plaintiff’s failure to include specific allegations against Defendant Phillip McLaurin (Jail
Superintendent) and St. Clair County Jail in the body of his Amended Complaint, despite his
having listed them among the defendants. Plaintiffs are required to associate specific defendants
with specific claims, so that defendants are put on notice of the claims brought against them and
so they can properly answer the complaint. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007); FED. R. CIV. P. 8(a)(2). Where a plaintiff has not included a defendant in his
statement of claim, the defendant cannot be said to be adequately put on notice of which claims
in the complaint, if any, are directed against him. Furthermore, merely invoking the name of a
potential defendant is not sufficient to state a claim against that individual. See Collins v. Kibort,
143 F.3d 331, 334 (7th Cir. 1998). And in the case of those defendants in supervisory positions,
the doctrine of respondeat superior is not applicable to § 1983 actions. Sanville v. McCaughtry,
266 F.3d 724, 740 (7th Cir. 2001) (citations omitted).
Plaintiff has not alleged that McLaurin is “personally responsible for the deprivation of a
constitutional right,” id., and a defendant cannot be liable merely because he supervised a person
who caused a constitutional violation. Further, St. Clair County Jail is not an appropriate
defendant in this case. 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
4
is not a legal entity in the first place and is therefore not amenable to suit.
Accordingly, McLaurin will be dismissed from this action without prejudice, and St.
Clair County Jail will be dismissed with prejudice.
Count 1
Courts have recognized that arbitrary or blanket strip searches of pretrial detainees may
violate the Constitution. See Bell v. Wolfish, 441 U.S. 520, 558-60 (1979) (search of pretrial
detainees after contact visits with outsiders was reasonable); Calvin v. Sheriff of Will Cnty., 405
F. Supp. 2d 933, 938-940 (N.D. Ill. 2005) (noting that “Bell did not validate a blanket policy of
strip searching pretrial detainees”). Bell instructs that in balancing the detainee’s constitutional
rights with the security concerns of the institution, courts must consider the scope of the
intrusion, the manner in which it is conducted, the justification for initiating it, and the place in
which it is conducted. Bell, 441 U.S. at 559. The Seventh Circuit has viewed with disfavor the
application of a blanket policy to strip search detainees in the absence of probable cause to
believe that the individual was concealing contraband or weapons. Tinetti v. Wittke, 620 F.2d
160 (7th Cir. 1980) (affirming 479 F. Supp. 486 (E.D. Wis. 1979)); see also Mary Beth G. v. City
of Chicago, 723 F.2d 1263, 1272 (7th Cir. 1983) (describing strip searches as “demeaning,
dehumanizing, undignified, humiliating, terrifying, unpleasant, embarrassing, repulsive,
signifying degradation and submission”).
Although civil rights claims brought by detainees arise under the Fourteenth Amendment
and not the Eighth Amendment, see Weiss v. Cooley, 230 F.3d 1027, 1032 (7th Cir. 2000), the
Seventh Circuit has “found it convenient and entirely appropriate to apply the same standard to
claims arising under the Fourteenth Amendment (detainees) and Eighth Amendment (convicted
prisoners) ‘without differentiation.’” Board v. Farnham, 394 F.3d 469, 478 (7th Cir. 2005)
5
(quoting Henderson v. Sheahan, 196 F.3d 839, 845 n.2 (7th Cir. 1999)).
Strip searches of prisoners that are not related to legitimate security needs, or are
conducted in a harassing manner in order to humiliate and inflict psychological pain, may be
found unconstitutional under the Eighth Amendment. Mays v. Springborn, 719 F.3d 631, 634,
(7th Cir. 2013) (group of inmates were strip searched together, gratuitously exposing prisoners’
nude bodies to each other, while guards uttered demeaning comments); Calhoun v. DeTella, 319
F.3d 936, 939 (7th Cir. 2003) (a strip search conducted in a harassing manner intended to
humiliate and inflict psychological pain could violate the Eighth Amendment); see also
Meriwether v. Faulkner, 821 F.2d 408 (7th Cir. 1987) (allegation of calculated harassment by
strip searches stated Eighth Amendment claim), cert. denied, 484 U.S. 935 (1987).
Plaintiff's factual allegations, however, fail to suggest that the January 8 strip search was
conducted in such a manner as to violate his constitutional rights. He does not claim that the
search involved any harassing, humiliating, or demeaning comments or behavior on the part of
Hearnis. Nor does it appear that the search was performed with the intent to degrade him, or that
it was unnecessary in light of legitimate security concerns. Indeed, Plaintiff states that, when he
asked why he was being strip searched, he was told by Hearnis, among other things: “We got
some information,” implying there was some penological reason for the search. (Doc. 9, p. 5).
Still, even if a valid penological reason existed for the search, “the manner in which the searches
were conducted must itself pass constitutional muster.” Mays v. Springborn, 719 F.3d 631, 634
(7th Cir. 2013) (quoting Mays v. Springborn, 575 F.3d 643, 649 (7th Cir. 2009)).
Plaintiff does not specify if he had any specific objection to the manner in which the
search was conducted. He focuses on the fact that he missed his scheduled visit because of the
search, but he does not claim that the decision to search him at that specific time during his
6
scheduled visit was maliciously geared toward harassing him.
Further, missing a single
scheduled visit does not independently give rise to a constitutional claim, without further facts
regarding the circumstances. “The very object of imprisonment is confinement. Many of the
liberties and privileges enjoyed by other citizens must be surrendered by the prisoner. An inmate
does not retain rights inconsistent with proper incarceration.” Overton v. Bazzetta, 539 U.S. 126,
131 (2003) (citing Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 125
(1977); Shaw v. Murphy, 532 U.S. 223, 229 (2001)). “And, as our cases have established,
freedom of association is among the rights least compatible with incarceration.” Id. (citing
Jones, 433 U.S. at 125-126; Hewitt v. Helms, 459 U.S. 460 (1983)). “Some curtailment of that
freedom must be expected in the prison context.” Id.
Plaintiff also notes that there were three other inmates that were searched, but such a
group search would not amount to a constitutional violation when no other circumstances were
present to indicate that the search was intended to humiliate, harass, or demean the inmates.
Searching prisoners in a group is not unconstitutional in and of itself.
“[A] prisoner’s
expectation of privacy is extremely limited in light of the overriding need to maintain
institutional order and security.” Meriwether v. Faulkner, 821 F.2d 408, 418 (7th Cir.1987)
(citing Bell v. Wolfish, 441 U.S. 520, 537 (1979)). “There is no question that strip searches may
be unpleasant, humiliating, and embarrassing to prisoners, but not every psychological
discomfort a prisoner endures amounts to a constitutional violation.” Calhoun v. DeTella, 319
F.3d 936, 939 (7th Cir. 2003).
By way of example, the strip search complained of in Mays v. Springborn involved
allegations that the plaintiff had been subjected to daily strip searches in view of other inmates in
a “freezing” basement room, by guards who wore dirty latex gloves and who made demeaning
7
comments to the prisoners. See Mays, 719 F.3d 631, 634 (7th Cir. 2013); Mays, 575 F.3d 643,
649 (7th Cir. 2009). In contrast to that case, Plaintiff herein does not describe any circumstances
suggesting that Hoernis intended to humiliate him or the other inmates by searching them as a
group on a single occasion. Given the allegations in the Amended Complaint, Plaintiff was not
subjected to cruel and unusual punishment, nor did the strip search violate the Fourth
Amendment, and Count 2 will be dismissed. Out of an abundance of caution, this dismissal will
be without prejudice.
Count 2
The applicable legal standard for conditions of confinement claims depends on Plaintiff’s
status as a pretrial detainee or prisoner while at the St. Clair County Jail. The Due Process
Clause of the Fourteenth Amendment governs claims of pretrial detainees, while the Eighth
Amendment applies to claims of inmates. See Klebanowski v. Sheahan, 540 F.3d 633, 637 (7th
Cir. 2008); see also Rice ex rel. Rice v. Corr. Med. Servs., 675 F.3d 650, 664 (7th Cir. 2012);
Forest v. Prine, 620 F.3d 739, 744-45 (7th Cir. 2010). However, in cases involving complaints
of unconstitutional conditions of confinement, both Eighth and Fourteenth Amendment case law
can be used interchangeably. Id.
The Eighth Amendment prohibits cruel and unusual punishment and is applicable to the
states through the Fourteenth Amendment. In a case involving conditions of confinement in a
prison, two elements are required to establish violations 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. Id.
8
With respect to the first element, 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). 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). Mere discomfort and
inconvenience do not implicate the Constitution. See Caldwell v. Miller, 790 F.2d 589, 600-01
(7th Cir. 1986).
Conditions such as poor ventilation do not fall below “the minimal civilized measure of
life’s necessities,” absent medical or scientific proof that such conditions exposed a prisoner to
diseases or respiratory problems which he would not otherwise have suffered. Dixon v. Godinez,
114 F.3d 640, 645 (7th Cir. 1997) (quoting Farmer v. Brennan, 511 U.S. 825, 833-34 (1994)).
In a case where an inmate complained about asbestos-covered pipes near his cell, the Seventh
Circuit held that “[e]xposure to moderate levels of asbestos is a common fact of contemporary
life and cannot, under contemporary standards, be considered cruel and unusual.” McNeil v.
Lane, 16 F.3d 123, 125 (7th Cir.1993). As to the possible mold exposure, while some courts
have allowed similar claims to proceed past threshold review, in those cases the plaintiff alleged
actual physical symptoms or illness that may have been caused by the mold exposure. See, e.g.,
Munson v. Hulick, Case No. 10–cv–52–JPG, 2010 WL 2698279 (S.D. Ill. July 7, 2010); Mejia v.
McCann, Case No. 08–C–4534, 2010 WL 653536 (N.D. Ill. Feb. 22, 2010); Moran v. Rogers,
Case No. 07–cv–171, 2008 WL 2095532 at *1–5 (N.D. Ind. May 15, 2008).
With respect to the second element in conditions of confinement cases, the relevant state
9
of mind is deliberate indifference to inmate health or safety. The official must be aware of facts
from which the 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); DelRaine v. Williford, 32 F.3d
1024, 1032 (7th Cir. 1994). The deliberate indifference standard is satisfied if the plaintiff shows
that the prison official acted or failed to act despite the official’s knowledge of a substantial risk
of serious harm. Farmer, 511 U.S. at 842.
Plaintiff's allegations of possible exposure to mold in the showers, paint, and dust in the
vents do not come close to describing the kind of objectively serious conditions that have been
found to state a constitutional claim for cruel and unusual punishment. See Vinning–El v. Long,
482 F.3d 923, 924 (7th Cir. 2007) (prisoner held in cell for three to six days with no working
sink or toilet, floor covered with water, and walls smeared with blood and feces); Jackson v.
Duckworth, 955 F.2d 21, 22 (7th Cir. 1992) (summary judgment improper where inmate alleged
he lived with “filth, leaking and inadequate plumbing, roaches, rodents, the constant smell of
human waste, ... [and] unfit water to drink[.]”); Johnson v. Pelker, 891 F.2d 136, 139 (7th Cir.
1989) (inmate held for three days in cell with no running water and feces smeared on walls); see
also, DeSpain v. Uphoff, 264 F.3d 965, 974 (10th Cir. 2001) (thirty-six hours with no working
toilet, flooded cell and exposure to human waste as well as the odor of accumulated urine, stated
Eighth Amendment claim).
Plaintiff has not alleged that he suffered any ailment from the possible exposure to mold,
paint, and dust in the vents. Plaintiff also fails to explain how often and to what degree he
encounters these conditions. Whether he experienced any exposure at all to potentially diseasecausing substances is speculative, and moderate exposure without any potential harm does not
10
rise to the level of a constitutional claim.
With respect to Plaintiff’s claims that there are inadequate portions of food served on
trays and that prisoners are charged too much for commissary and Aramark food services, while
lack of adequate nutrition may state a constitutional claim, French v. Owens, 777 F.2d 1250,
1255 (7th Cir. 1985) (citation omitted), Plaintiff has not provided any detail with respect to these
allegations. Without more information regarding the nutritional value of the food Plaintiff is
provided in a day, this Court cannot find that Plaintiff’s constitutional claims on this issue cross
“the line between possibility and plausibility.” Twombly, 550 U.S. at 557.
With respect to Plaintiff’s allegation that he has only been given one set of clothing and is
therefore forced to wear a blanket while his clothes are being washed, Plaintiff has not provided
any facts that would show this situation has posed an excessive risk to his health or safety.
Plaintiff has not provided any facts regarding how long he is forced to remain in the blanket
while laundry is done or whether his being without clothes exposes him to extreme conditions of
some sort from which his blanket cannot shield him. If Plaintiff is concerned with potential
exposure of his body from only having a blanket to cover himself, the “[m]onitoring of naked
prisoners is not only permissible ... but also sometimes mandatory,” so the monitoring of a
prisoner covered by a blanket, on certain specific occasions without the Plaintiff sustaining some
greater harm, is not likely to give rise to a constitutional claim. Johnson v. Phelan, 69 F.3d 144,
146 (7th Cir. 1995).
Finally, the Amended Complaint does not explain how any of the defendants were
directly involved in perpetuating these alleged conditions, much less were deliberately
indifferent to Plaintiff’s health and safety. In fact, Plaintiff does not name any of the defendants
in connection with his conditions of confinement allegations at all. Thus, Count 2 will be
11
dismissed without prejudice.
Count 3
With respect to Plaintiff’s allegation that he was prevented him from purchasing writing
paper, purchasing stamped envelopes, and using the telephone to call his attorney from March 6,
2017 to March 19, 2017 and denied him access to the law library for 4 weeks, it is unclear
exactly what type of claim Plaintiff intends to bring.
If Plaintiff considers this alleged
deprivation a Fourteenth Amendment violation, writing materials can hardly be considered basic
human needs, so such a claim would be unavailing. To the extent Plaintiff seeks to claim that his
right to access the courts was violated, Plaintiff has not alleged an actual or threatened detriment
to any litigation, which is an essential element of a § 1983 action for denial of access to the
courts. Martin v. Davies, 917 F.2d 336, 340 (7th Cir. 1990); see also Kaufman v. McCaughtry,
419 F.3d 678, 686 (7th Cir. 2005); Howland v. Kilquist, 833 F.2d 639, 642-43 (7th Cir. 1987).
If Plaintiff intends to assert a First Amendment claim based on his inability to send mail,
the Supreme Court has recognized that prisoners have protected First Amendment interests in
both sending and receiving mail, particularly legal mail. See Thornburgh v. Abbott, 490 U.S.
401 (1989); Turner v. Safely, 482 U.S. 78 (1987); Pell v. Procunier, 417 U.S. 817, 822 (1974)
(“[a] prison inmate retains those First Amendment rights that are not inconsistent with his status
as a prisoner or with the legitimate penological objectives of the corrections system”). Contentbased restrictions upon a prisoner’s exercise of his First Amendment rights are particularly
concerning. See Rowe v. Shake, 196 F.3d 778, 782 (7th Cir. 1999) (discussing the parameters of
a prisoner’s First Amendment rights to mail and noting that a non-content based claim of minor
interference with mail typically does not state a claim grounded in the First Amendment). A
valid claim typically requires “a continuing pattern or repeated occurrences” of mail interference.
12
Zimmerman v. Tribble, 226 F.3d 568, 572 (7th Cir. 2000). This includes a prisoner’s claim of
ongoing interference with his legal mail. Castillo v. Cook Cnty. Mail Room Dep’t, 990 F.2d 304
(7th Cir. 1993). This also includes a prisoner’s claim that his legal mail was opened, delayed for
an inordinate period of time, and even lost. Antonelli v. Sheahan, 81 F.3d 1422, 1431-32 (7th
Cir. 1996).
Plaintiff has failed to elaborate on the circumstances under which he was deprived of
paper and stamped envelopes for sending mail – such as whether he was given a reason for this
deprivation, told when the deprivation would end, or intended to send mail during this time
period at all. Further, based on Plaintiff’s allegations, this deprivation did not last for an
inordinate period of time (only 2 weeks), nor was it repeated or content-based. Plaintiff has, as
mentioned above, also failed to associate any particular defendants with this alleged deprivation.
Count 3 will therefore be dismissed, without prejudice, for failing to state a claim upon which
relief may be granted.
Pending Motions
Plaintiff has filed a Motion for Recruitment of Counsel (Doc. 2).
There is no
constitutional or statutory right to appointment of counsel in federal civil cases. Romanelli v.
Suliene, 615 F.3d 847, 851 (7th Cir. 2010). When presented with a request to appoint counsel,
the Court must consider: “(1) has the indigent plaintiff made a reasonable attempt to obtain
counsel or been effectively precluded from doing so; and if so, (2) given the difficulty of the
case, does the plaintiff appear competent to litigate it himself [.]” Pruitt v. Mote, 503 F.3d 647,
654 (7th Cir. 2007).
With regard to the first step of the inquiry, Plaintiff claims in his Motion that he has
called several attorneys. He does not list the names of the attorneys he allegedly called, nor does
13
he attach any letters he may have sent to or received from attorneys he has sought representation
from. The Court therefore has little information with which to determine whether Plaintiff has
made a reasonable attempt to find counsel.
Assuming Plaintiff has made a reasonable attempt to find counsel, which is dubious at
best, concerning the second step of the inquiry, “the difficulty of the case is considered against
the plaintiff’s litigation capabilities, and those capabilities are examined in light of the challenges
specific to the case at hand.” Id. at 655. In this case, Plaintiff’s claims do not appear to be that
factually complex.
Plaintiff claims he was strip searched in violation of his rights, and
adequately pleading such a claim merely requires sufficient information related to the incident
which would implicate a named defendant. Plaintiff also claims he has been subjected to
unconstitutional conditions of confinement. Pleading this claim, once again, requires Plaintiff to
recount his own experiences regarding his confinement and how these experiences have affected
him. Finally, Plaintiff has alleged he was prevented from obtaining writing materials, stamped
envelopes, and access to the law library, as well as calling his attorney, for a certain period of
time. To state a First Amendment claim with respect to these issues, as detailed above, Plaintiff
need only articulate what occurred and how it affected him in sufficient detail and in such a way
that implicates a named defendant.
From a legal standpoint, the litigation of any constitutional claim falls in the complex
range.
Even so, Plaintiff’s Amended Complaint adequately articulates the claims he is
attempting to bring, and based on this ability and no further explanation from Plaintiff as to why
he is incapable of litigating his case, this Court concludes that Plaintiff appears to be competent
to litigate on his own at this time. Future developments in this case may alter the Court’s
decision, but at this early stage in the litigation, and given the reasoning above, Plaintiff’s
14
Motion for Recruitment of Counsel (Doc. 2) is hereby DENIED without prejudice. Plaintiff
may choose to re-file this motion at a later stage in the litigation.
Disposition
IT IS HEREBY ORDERED that the Amended Complaint is DISMISSED without
prejudice for failure to state a claim upon which relief may be granted.
IT IS FURTHER ORDERED that ST. CLAIR COUNTY JAIL is DISMISSED with
prejudice from this action.
IT IS FURTHER ORDERED that, should he wish to proceed with this case, Plaintiff
shall file his Second Amended Complaint, stating any facts which may exist to support an
unconstitutional strip search, unconstitutional conditions of confinement, or First Amendment
access to mail/courts claim, within 28 days of the entry of this order (on or before May 2, 2017).
Should Plaintiff fail to file his Second Amended Complaint within the allotted time or consistent
with the instructions set forth in this Order, the entire case shall be dismissed with prejudice for
failure to comply with a court order and/or for failure to prosecute his claims. FED. R. APP. 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); 28 U.S.C. § 1915(e)(2). Such dismissal shall count as one of
Plaintiff’s three allotted “strikes” within the meaning of 28 U.S.C. § 1915(g).
Should Plaintiff decide to file a Second Amended Complaint, it is strongly recommended
that he use the forms designed for use in this District for such actions. He should label the form,
“Second Amended Complaint,” and he should use the case number for this action (i.e. 17-cv195-JPG). 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. Plaintiff should attempt to include the facts of his
15
case in chronological order, inserting each defendant’s name where necessary to identify the
actors. Plaintiff should refrain from filing unnecessary exhibits. Plaintiff should include only
related claims in his new complaint. Claims found to be unrelated to the alleged strip search,
conditions of confinement, and First Amendment claims will be severed into new cases, new
case numbers will be assigned, and additional filing fees will be assessed.
Plaintiff is warned that the Court takes the issue of perjury seriously, and that any facts
found to be untrue in the Second Amended Complaint may be grounds for sanctions, including
dismissal and possible criminal prosecution for perjury. Rivera v. Drake, 767 F.3d 685, 686 (7th
Cir. 2014) (dismissing a lawsuit as a sanction where an inmate submitted a false affidavit and
subsequently lied on the stand).
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 a complaint. Thus, the
Second 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 Second
Amended Complaint.
The Second Amended Complaint is subject to review pursuant to
28 U.S.C. § 1915A. No service shall be ordered on any defendant until after the Court completes
its § 1915A review of the Second Amended Complaint.
Plaintiff is further ADVISED that his obligation to pay the filing fee for this action was
incurred at the time the action was filed, thus the filing fee of $350.00 remains due and payable,
regardless of whether Plaintiff elects to file a Second Amended Complaint. See 28 U.S.C.
§ 1915(b)(1); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998).
Finally, Plaintiff is ADVISED that he is under a continuing obligation to keep the Clerk
16
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).
In order to assist Plaintiff in preparing his amended complaint, the Clerk is DIRECTED
to mail Plaintiff a blank civil rights complaint form.
IT IS SO ORDERED.
DATED: April 3, 2017
s/J. Phil Gilbert
U.S. District Judge
17
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?