Wimberly v. Dennison

Filing 10

ORDER REFERRING CASE to Magistrate Judge Reona J. Daly. Signed by Judge David R. Herndon on 11/6/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ANTHONY WIMBERLY,
N-61282,
Plaintiff,
v.

No. 3:17-cv-00472-DRH

WARDEN JEFFREY DENNISON,
IDOC,
SGT. PITCHFORD, and
JOHN DOE,
Defendants.
MEMORANDUM AND ORDER
HERNDON, District Judge:
Plaintiff, currently incarcerated at Illinois River Correctional Center, filed
this this pro se civil rights action pursuant to 42 U.S.C. § 1983 for constitutional
violations that allegedly occurred while he was incarcerated at Shawnee
Correctional Center (“Shawnee”). On July 31, 2017, the Court dismissed
Plaintiff’s Original Complaint without prejudice and with leave to amend. (Doc. 6).
Thereafter, Plaintiff filed his First Amended Complaint. (Doc. 7 and Doc. 9
(identified as a “continuation” of the First Amended Complaint). 1 In the First
Amended Complaint, Plaintiff claims that he was subjected to unsanitary cell
conditions for approximately 30 days when he was placed in disciplinary
segregation in January 2017.
This case is now before the Court for a preliminary review of the First
1

The Court notes that it does not accept piecemeal pleadings. However, it appears Plaintiff
intended to submit the two pleadings together as his First Amended Complaint. Accordingly, the
Court construes the pleadings together as Plaintiff’s First Amended Complaint.

Amended Complaint (Docs. 7 and 9) pursuant to 28 U.S.C. § 1915A.
Under § 1915A, the Court is required to screen prisoner complaints to filter
out non-meritorious claims. See 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).
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 “no reasonable person could
suppose to have any merit.” 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.

Conversely, a complaint is plausible on its face “when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Although the Court is obligated to accept factual allegations as true, see Smith v.

Peters, 631 F.3d 418, 419 (7th Cir. 2011), some factual allegations may be so
sketchy or implausible that they fail to provide sufficient notice of a plaintiff’s
claim. Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). Additionally, Courts
“should not accept as adequate abstract recitations of the elements of a cause of

action or conclusory legal statements.” Id. At the same time, however, the factual
allegations of a pro se complaint are to be liberally construed. See Arnett v.

Webster, 658 F.3d 742, 751 (7th Cir. 2011); Rodriguez v. Plymouth Ambulance
Serv., 577 F.3d 816, 821 (7th Cir. 2009).
Applying these standards, the Court finds that the First Amended
Complaint survives threshold review under § 1915A.
The Amended Complaint (Docs. 7 and 9)
On January 11, 2017, Plaintiff was placed in segregation. (Doc. 9, p. 3).
Plaintiff claims the cell he was confined in was uninhabitable and should have
been condemned. (Doc. 7, p. 5; Doc. 9, pp. 3-4). The sink and toilet were full of
mold and mildew. Id. The sink was non-functional because a “seg pen” was stuck
in the faucet and no water would come out. Id. The mattress in the cell had urine
stains on it and smelled of urine. Id. The windows were drilled shut and there
was inadequate air circulation. Id. Plaintiff was not provided with cleaning
supplies, but tried to clean the cell with his personal hygiene items (body soap
and towels). Id. Plaintiff remained in the original unsanitary segregation cell for
20 days. Id. Thereafter, for the next 10 days, Plaintiff was repeatedly transferred
to new segregation cells. However, the conditions in each cell were equally
deplorable.
Plaintiff contends that Pitchford and Dennison had knowledge of the
complained of conditions in Plaintiff’s original segregation cell. (Doc. 7, p. 5; Doc.
9, pp. 3-5). Additionally, Plaintiff claims Defendants new that all of the segregation
cells were equally uninhabitable. Id. According to Plaintiff, these Defendants were

aware of these conditions because they personally observed the conditions, and/or
because of Plaintiff’s repeated complaints and/or grievances regarding the same.

Id. Instead of addressing the conditions, Defendants allegedly “turned a blind
eye.” Id. Plaintiff contends that Defendants’ decision to transfer him from cell to
cell was a meaningless act because all of the segregation cells were uninhabitable
and Defendants knew that all of the segregation cells were uninhabitable. Id.
Dismissal of Certain Defendants
Illinois Department of Corrections
IDOC is a state governmental agency. The Supreme Court has held that
“neither a State nor its officials acting in their official capacities are ‘persons'
under § 1983.” Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989). See

also Wynn v. Southward, 251 F.3d 588, 592 (7th Cir. 2001) (Eleventh
Amendment

bars

suits

against

states

in

federal

court

for

money

damages); Billman v. Ind. Dep't of Corr., 56 F.3d 785, 788 (7th Cir. 1995) (state
Department of Corrections is immune from suit by virtue of Eleventh
Amendment); Hughes v. Joliet Corr. Ctr., 931 F.2d 425, 427 (7th Cir. 1991)
(same); Santiago v. Lane, 894 F.2d 219, 220 n. 3 (7th Cir. 1990) (same).
Accordingly, Plaintiff cannot direct any § 1983 claims against IDOC and
IDOC will be dismissed from this action without prejudice.
John Doe
Plaintiff has included a John Doe Defendant described as “Sgt. Pickford or
Lt. Pickford.” It is evident that John Doe Defendant, Sgt. Pickford or Lt. Pickford,
is the same individual as Defendant Sgt. Pitchford, or Lt. Pitchford. Plaintiff has

only included a John Doe Defendant because he is unsure of the correct spelling
for this individual’s last name. In order to address this issue, the Court orders as
follows:
The Clerk of the Court is DIRECTED to terminate John Doe as a party in
CM/ECF. Further, the Clerk of the Court is DIRECTED to modify Defendant Sgt.
Pitchford,

or

Lt.

Pitchford, as

follows:

Sgt.

Pitchford/Pickford,

or

Lt.

Pitchford/Pickford.
Merits Review Pursuant to 28 U.S.C. § 1915A
Based on the allegations of the Complaint, the Court finds it convenient to
divide the pro se action into a single count. 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. The designation of this count does not constitute an
opinion as to merit. Any other claim that is mentioned in the Complaint but not
addressed in this Order should be considered dismissed without prejudice.
Count 1:
Eighth Amendment claim for being confined under
unsanitary conditions in segregation cell for 30 days beginning on
January 11, 2017.
The Eighth Amendment prohibition on cruel and unusual punishment
forbids unnecessary and wanton infliction of pain, and punishment grossly
disproportionate to the severity of the crime. Rhodes v. Chapman, 452 U.S. 337,
346 (1981) (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)). Prison
conditions that deprive inmates of basic human needs – food, medical care,
sanitation, or physical safety – may violate the Eighth Amendment. Rhodes, 452

U.S. at 346; see also James v. Milwaukee Cnty., 956 F.2d 696, 699 (7th Cir.
1992).
Claims under the Eighth Amendment have both an objective and subjective
component. McNeil v. Lane, 16 F.3d 123, 124 (7th Cir. 1994); see also Wilson v.

Seiter, 501 U.S. 294, 302 (1991). The objective conditions must have resulted in
an unquestioned and serious deprivation of basic human needs or deprived the
inmate 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).
The subjective component of unconstitutional punishment focuses on the
state of mind of the defendant. Jackson v. Duckworth, 955 F.2d 21, 22 (7th Cir.
1992); Wilson, 501 U.S. at 298; see also McNeil v. Lane, 16 F.3d 123, 124 (7th
Cir. 1994). In conditions of confinement cases, this is deliberate indifference to
inmate health or safety. 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 from the
conditions. Farmer, 511 U.S. at 842.
The denial of access to “adequate sanitation and personal hygiene items”
may demonstrate a deprivation of “the minimal civilized measure of life’s
necessities.” Budd v. Motley, 711 F.3d 840, 842 (7th Cir. 2013) (citing Farmer v.

Brennan, 511 U.S. 825, 834 (1994)); Rice ex rel. Rice v. Corr. Med. Servs., 675
F.3d 650, 664 (7th Cir. 2012); Gillis v. Litscher, 468 F.3d 488 (7th Cir. 2006);

Vinning-El v. Long, 482 F.3d 923, 924 (7th Cir. 2007)). Further, “conditions of
confinement, even if not individually serious enough to work constitutional
violations, may violate the Constitution in combination when they have a ‘mutually
enforcing effect that produces the deprivation of a single, identifiable human
need.’” Budd, 711 F.3d at 842 (citing Wilson v. Seiter, 501 U.S. 294, 304 (1991);

Gillis, 468 F.3d at 493; Murphy v. Walker, 51 F.3d 714, 721 (7th Cir. 1995)).
In order to be held individually liable in a civil rights case, a defendant
must have caused or participated in a constitutional deprivation.”

Pepper v.

Village of Oak Park, 430 F.3d 805, 810 (7th Cir. 2005) (internal quotations and
citations omitted). Generally, the denial of a grievance, standing alone, is
insufficient grounds for individual liability. See George v. Abdullah, 507 F.3d 605,
609 (7th Cir. 2007) (“Ruling against a prisoner on an administrative complaint
does not cause or contribute to the violation.”); Owens v. Hinsley, 635 F.3d 950,
953 (7th Cir. 2011) (“[T]he alleged mishandling of [a prisoner's] grievance by
persons who otherwise did not cause or participate in the underlying conduct
states no claim.”). See also Aguilar v. Gaston-Camara, 2017 WL 2784561, *4 (7th
Cir. 2017) (the Seventh Circuit has “rejected the notion that ‘everyone who knows
about a prisoner's problems' will incur § 1983 liability,” citing Burks v. Raemisch,
555 F.3d 592, 595 (7th Cir. 2009)).

On the other hand, the Seventh Circuit has made it clear that “a prison
official's

knowledge

of

prison

conditions

learned

from

an

inmate's

communications can, under some circumstances, constitute sufficient knowledge
of the conditions to require the officer to exercise his or her authority and to take
the needed action to investigate and, if necessary, to rectify the offending
condition.” Perez v. Fenoglio, 792 F.3d 768, 781-82 (citing Vance v. Peters, 97
F.3d 987, 993 (7th Cir. 1996)).
Finally, neither Defendant is subject to liability merely because he held a
supervisory position at the prison. Sanville v. McCaughtry, 266 F.3d 724, 740
(7th Cir. 2001) (doctrine of respondeat superior is not applicable to § 1983
actions).
The conditions described in the First Amended Complaint, at this early
stage of the litigation, are sufficient to satisfy the objective component.
Additionally, reading the First Amended Complaint liberally and giving Plaintiff
the benefit of the doubt he is entitled to at this stage of the litigation, the pleading
suggests that Defendants responded with deliberate indifference to these
conditions. Plaintiff alleges that both Defendants were aware of the offending
conditions (either through personal observation or through Plaintiff’s complaints)
but took no meaningful action to rectify the problems.
This is sufficient to allow the claim to proceed at screening. A more fully
developed record will shed light on whether Defendants were personally involved

in the alleged constitutional violation and acted with the requisite culpable state of
mind, deliberate indifference.
Pending Motions
Plaintiff has filed a Motion for Recruitment of Counsel (Doc. 8). The Motion
shall be referred to a United States Magistrate Judge for disposition.
Disposition
IT IS HEREBY ORDERED that IDOC is dismissed from the action without
prejudice. The Clerk of the Court is DIRECTED to terminate IDOC as a party in
CM/ECF.
The Clerk of the Court is DIRECTED to terminate Defendant JOHN DOE
as a party in CM/ECF. Further, the Clerk of the Court is DIRECTED to modify
Defendant

SGT.

PITCHFORD,

or

Lt.

Pitchford,

as

follows:

SGT.

PITCHFORD/PICKFORD, or Lt. Pitchford/Pickford.
IT IS HEREBY ORDERED that the Complaint shall receive further review
as to DENNISON and SGT. PITCHFORD/PICKFORD.
IT IS FURTHER ORDERED that the Clerk of Court shall prepare for
DENNISON and SGT. PITCHFORD/PICKFORD: (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 First
Amended Complaint, and this Memorandum and Order to each Defendant’s place
of employment as identified by Plaintiff. 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 Plaintiff, 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 disclosed by the Clerk.
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 a United
States Magistrate Judge for further pre-trial proceedings, including Plaintiff’s
Motion for Recruitment of Counsel. Further, this entire matter shall be
REFERRED to a United States Magistrate Judge 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 Plaintiff, and the judgment includes the
payment of costs under § 1915, Plaintiff will be required to pay the full amount of
the costs, regardless of whether his application to proceed in forma pauperis is
granted. See 28 U.S.C. § 1915(f)(2)(A).

Plaintiff 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, who shall pay therefrom all
unpaid costs taxed against plaintiff and remit the balance to plaintiff. Local Rule
3.1(c)(1).
Finally, Plaintiff 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.
Signed this 6th day of November, 2017.

Digitally signed by
Judge David R.
Herndon
Date: 2017.11.06
16:05:22 -06'00'
UNITED STATES DISTRICT JUDGE