Wimberly v. Dennison

Filing 6

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the Complaint is DISMISSED without prejudice. Plaintiff is GRANTED leave to file a First Amended Complaint on or before August, 30th, 2017. The Motion for Recruitment of Counsel (Doc. 3) is DENIED without prejudice. To enable Plaintiff to comply with this Order, the CLERK is DIRECTED to mail Plaintiff a blank civil rights complaint form. ( Amended Pleadings due by 8/30/2017.). Signed by Judge David R. Herndon on 7/31/2017. (tkm)

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

Case No. 17-cv-472-DRH

WARDEN JEFFREY DENNISON,
Defendant.
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”).

Plaintiff claims that he was subjected to

unsanitary cell conditions for 20 days when he was placed in disciplinary
segregation in January 2017. This case is now before the Court for a preliminary
review of the Complaint 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 Complaint does not
survive threshold review under § 1915A.

The Complaint
On January 11, 2017, Plaintiff was placed in segregation for 30 days
because of an altercation (a 301 fight). (Doc. 1, p. 5). Plaintiff was confined in a
segregation cell which, he claims, was uninhabitable and should have been
“condemned” due to poor conditions. Id. 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. Plaintiff did not have cleaning

supplies to clean the segregation cell. Id. Additionally, the mattress in the cell
had urine stains on it and “reeked” of urine.
unsanitary segregation cell for 20 days.

Id.

Id.

Plaintiff remained in the

Plaintiff was moved to a new

segregation cell after “constantly complaining” and filing grievance. Id.
In connection with these claims, Plaintiff sues Jeffrey Dennison, the
warden, because the staff worked “under” Warden Dennison.

(Doc. 1, p. 5).

Plaintiff seeks monetary damages. (Doc. 1, p. 6).
Earlier Filed Civil Rights Action
This is not Plaintiff’s first action involving conditions of confinement while
housed at Shawnee. On December 6, 2016, Plaintiff filed a similar pro se civil
rights action in the Southern District of Illinois. See Wimberly v. C/O Sams et al.,
No. 3:16-cv-1309-MJR-SCW. This action (hereinafter, “Pending Shawnee Action”)
is presently proceeding before Chief Judge Michael J. Reagan.
In the Pending Shawnee Action, Plaintiff’s Complaint brought claims
pertaining to unsanitary cell conditions, loss of property, and failure to respond to

grievances. (Pending Shawnee Action, Docs. 1, 14). Plaintiff’s claims arose in
connection with his 30-day stint in disciplinary segregation (from March 21, 2016
through April 21, 2016).

In connection with these claims, Plaintiff sued two

correctional officers and Jeffrey Dennison. In conducting a preliminary review of
Plaintiff’s Complaint, Judge Reagan summarized the allegations pertaining to
unsanitary cell conditions (Count 2 in the Pending Shawnee Action) as follows:
Plaintiff was confined for 30 days (until April 21, 2016) in the
segregation cell which, he claims, should have been “condemned” due
to the poor conditions. (Doc. 1, p. 4). The cell had “no proper
running water” because a seg pen was stuck in the faucet spout. Not
only did the pen obstruct the flow of water, it exposed Plaintiff to
germs in his drinking water from that foreign object. (Doc. 1, pp. 45). The window was “drilled shut” so that the air did not circulate
properly. The window screen was torn, allowing insects and ants to
invade the cell. They crawled on Plaintiff, got into his bed, and bit
him day and night. (Doc. 1, pp. 5, 13). The sink and toilet were
contaminated with fungus and mildew, and Plaintiff was not given
cleaning supplies. He had to drink from and wash up in the filthy
sink for the entire 30 days, placing his health at risk. (Doc. 1, p. 6).
Plaintiff asked Sams to move him to a better cell, but Sams ignored
the request. Warden Dennison was the supervisor of Sams and was
responsible for the conditions throughout the facility.
(Pending Shawnee Action, Doc. 14, p. 3). Plaintiff’s Complaint was divided into
three counts. (Pending Shawnee Action, Doc. 14, p. 4). Counts 1 and 3 did not
survive preliminary review. Count 2 proceeded against one of the correctional
officer defendants. (Pending Shawnee Action, doc. 14, p. 7). However, Warden
Dennison was dismissed from Count 2 and from the Complaint for lack of
personal involvement. Id. In dismissing Warden Dennison, the Judge Reagan
explained that supervisory liability is not applicable to § 1983 actions.

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 the segregation cell for 20 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). In the instant case, Count 1 must be dismissed because it states no claim
as to the only named defendant – Warden Dennison.
Section 1983 creates a cause of action based on personal liability and
predicated upon fault; thus, “to be liable under § 1983, the individual 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). In order to state a claim against a defendant, a plaintiff must
describe what each named defendant did (or failed to do), that violated the
plaintiff's constitutional rights.
Here, Plaintiff does not allege that Warden Dennison was directly involved
in the alleged constitutional deprivations.

Rather, he alleges that Warden

Dennison is liable because he supervised “staff” at Shawnee.

The doctrine of

respondeat superior (supervisory liability) is not applicable to § 1983 actions.
Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001) (citations omitted).
Thus, Warden Dennison is not subject to liability merely because of his role as a
supervisor at Shawnee.
Under certain circumstances, a prison official’s knowledge of an ongoing
violation can trigger a duty investigate and, if necessary, exercise his or her
authority to intervene on a prisoner’s behalf. See Perez v. Fenoglio, 792 F.3d 768,
781-82 (7th Cir. 2015). 1 In the instant case, the Complaint does not suggest that
such circumstances exist. Plaintiff merely alleges that he complained to “staff”
and filed a grievance. Apparently, in response to his complaints, Plaintiff was
moved to another segregation cell. This does not suggest that Warden Dennison
“turned a blind eye” to a constitutional violation as described in Perez and related
authority.

But, the denial of a grievance – standing alone – generally states no constitutional claim. United
States Constitution. See George v. Abdullah, 507 F.3d 605, 609 (7th Cir. 2007); Owens v. Hinsley,
635 F.3d 950, 953 (7th Cir. 2011); Estate of Miller by Chassie v. Marberry, 847 F.3d 425, 428-29
1

(7th Cir. 2017).

Pending Motions
Plaintiff has filed a Motion for Recruitment of Counsel (Doc. 3).

The

dismissal of the complaint without prejudice raises the question of whether
Plaintiff is capable of drafting a viable amended complaint without the assistance
of counsel.
There is no constitutional or statutory right to counsel in federal civil cases.

Romanelli v. Suliene, 615 F.3d 847, 851 (7th Cir. 2010); see also Johnson v.
Doughty, 433 F.3d 1001, 1006 (7th Cir. 2006). Nevertheless, the district court
has discretion under 28 U.S.C. § 1915(e)(1) to recruit counsel for an indigent
litigant. Ray v. Wexford Health Sources, Inc., 706 F.3d 864, 866– 67 (7th Cir.
2013).
When a pro se litigant submits a request for assistance of counsel, the
Court must first consider whether the indigent plaintiff has made reasonable
attempts to secure counsel on his own. Navejar v. Iyiola, 718 F.3d 692, 696 (7th
Cir. 2013) (citing Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007)). If so, the
Court must examine “whether the difficulty of the case— factually and legally—
exceeds the particular plaintiff's capacity as a layperson to coherently present it.”

Navejar, 718 F.3d at 696 (quoting Pruitt, 503 F.3d at 655). “The question...is
whether the plaintiff appears competent to litigate his own claims, given their
degree of difficulty, and this includes the tasks that normally attend litigation:
evidence gathering, preparing and responding to motions and other court filings,
and trial.” Pruitt, 503 F.3d at 655. The Court also considers such factors as the

plaintiff's

“literacy,

communication

skills,

education

level,

and

litigation

experience.” Id.
With respect to the first inquiry, Plaintiff states that he has contacted
several lawyers with no response. The minimal information provided does not
allow the Court to determine if Plaintiff has made reasonable attempts to obtain
counsel on his own. With respect to the second inquiry, there is no indication
that the recruitment of counsel is not warranted at this stage of the litigation.
Plaintiff has some high school education and, to date, has submitted coherent
pleadings.

At this juncture, the Court is merely concerned with whether this

action can get out of the gate, so to speak. All that is required is for Plaintiff to
provide an amended complaint that includes sufficient factual content regarding
the alleged constitutional violations and the individuals associated with the alleged
violations. Plaintiff alone has knowledge of these facts, and no legal training or
special knowledge is required to set them down on paper. Therefore, the Motion
for Recruitment of Counsel (Doc. 3) is DENIED without prejudice. The Court will
remain open to appointing counsel as the case progresses.
Disposition
IT IS HEREBY ORDERED that the Complaint is DISMISSED without
prejudice.
Plaintiff is GRANTED leave to file a “First Amended Complaint” on or
before August, 30th, 2017. Should Plaintiff fail to file his First 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).
Should Plaintiff decide to file a First 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, “First Amended Complaint,” and he should use
the case number for this action (i.e. 17-cv-472-DRH).
To enable Plaintiff to comply with this Order, the CLERK is DIRECTED to
mail 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 Plaintiff must
re-file any exhibits he 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. § 1915(e)(2).
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 First
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 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 31st day of July, 2017.

Digitally signed by
Judge David R. Herndon
Date: 2017.07.31
13:19:34 -05'00'
UNITED STATES DISTRICT JUDGE