Russell v. Mooney et al

Filing 10

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. Signed by Judge J. Phil Gilbert on 6/7/2017. (jaj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
LEKEDRIEON RUSSELL,
Plaintiff,
vs.
NEILL MOONEY,
MT. VERNON JUSTICE CENTER
COUNTY JAIL,
C. GREENWOOD,
JENNIFER ROBERTS,
A. BLANDFORD,
J. CARLTON,
B. HUFF,
A. MEYERS,
LT. HAYNES,
LT. BONNIE MAY,
C/O SPARTEGUES,
CAPT. MOUNT,
C/O JEFF CLARK,
NURSE SHIRLEY,
DR. PAULIUS,
C/O FORTAG,
C/O EDWARDS,
DEPUTY TRAVIS SCOTT,
C/O NANCY,
C/O CONWAY,
and C/O McKENNETH,
Defendants.

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Case No. 17-cv-570-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
This matter is now before the Court for a merits review of Plaintiff Russell’s claims
pursuant to 28 U.S.C. § 1915A. This case, containing Counts 1-4, was severed on May 31, 2017,
from the case jointly filed by Russell and former co-Plaintiff Corbin Jones, Jones & Russell v.
Mooney, et al., Case No. 17-cv-349-JPG. (Doc. 1). Russell is currently incarcerated in the
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Jefferson County Justice Center (“the jail”). His pro se Complaint, brought pursuant to 42
U.S.C. § 1983, includes claims that Russell was denied medication and treatment for his mental
health conditions, was confined in a cell contaminated with another inmate’s blood, was denied
medical attention for possible exposure to disease, and was denied of out-of-cell recreation.
Under § 1915A, the Court is required to screen prisoner complaints to filter out nonmeritorious 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

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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 one of Russell’s claims survives threshold
review under § 1915A.
The Complaint (Doc. 2)
The Complaint was submitted by Russell together with former co-Plaintiff Jones, and is
presented in 2 distinct parts. The first section (Doc. 2, pp. 1-20) contains Russell’s claims. The
second section (containing 70 pages and found herein at Doc. 2, pp. 21-90), contains claims
pertaining only to former co-Plaintiff Jones; therefore, that section of the pleading shall not be
considered in this severed case. The merits review herein shall focus only on the claims
presented in Russell’s portion of the pleading, found at Doc. 2, pp. 1-20, and designated as
Counts 1-4 in the severance order. (Doc. 1, p. 5).
Russell alleges that on March 29, 2017, a cellmate (Joshua Heart) attempted to kill
himself by cutting both his wrists (Doc. 2, pp. 13, 16, 18). Russell pressed the intercom button
repeatedly to summon help, but no jail staff members responded until about 15-20 minutes later.
(Doc. 2, pp. 10, 13, 16-18).

While Russell was pressing the button, unnamed jail staff

member(s) told him (presumably via the intercom) that he was lying, and to quit playing. (Doc.
2, pp. 10, 18). When Heart’s bleeding became worse, Russell tore his underwear to make a
tourniquet in an attempt to stop the bleeding. (Doc. 2, p. 18). The cell “look[ed] like a blood
bath” after Heart cut himself, and Russell got Heart’s blood all over his face, hands, and clothes.
(Doc. 2, pp. 13, 16, 18). Heart is a “known drug addict” and intravenous meth user, so Russell
asked to be tested for HIV, AIDS, Hepatitis-C, and tuberculosis. (Doc. 2, pp. 5, 13, 20).

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However, no such testing has been performed. Id.
For at least 4 days after Heart’s suicide attempt, the blood was not cleaned up from the
cell or surrounding area, including the table where Russell and other prisoners eat their meals.
(Doc. 2, pp. 5, 16). Thus, Russell’s exposure to the cellmate’s blood continued. Russell also
mentions, without further explanation, that “they got me . . . laying on the floor where I found
blood.” (Doc. 2, p. 16). Russell was allowed to shower, but was not given any cleaning supplies
for the cell. (Doc. 2, pp. 14, 18).
Russell had previously been diagnosed as bipolar, and suffers from depression, ADHD,
and PTSD.

(Doc. 2, pp. 17, 19).

Since witnessing Heart’s suicide attempt, Russell has

experienced sleep disturbances, shaking, and cold sweats. (Doc. 2, pp. 16-17, 19-20). He
requested Captain Mount and other staff to help him get mental health treatment, but his requests
have been ignored. (Doc. 2, p. 19). Further, he has not received his regular prescription
medication for his pre-existing mental health conditions. On or about March 29, 2017, Lt.
Haynes laughed and joked about Heart’s suicide attempt, saying he faked it, which upset Russell.
(Doc. 2, p. 16).
Russell also alleges that he “begged” to be allowed out of the cell for recreation, but
Jennifer Roberts refused to let him out for 3 days in a row. (Doc. 2, pp. 14, 18). Instead, Roberts
placed Russell “on lock down” for pressing the intercom, cursed him, and told him to stop
pushing the button. (Doc. 2, pp. 14, 18).
Russell seeks damages for the violations of his rights. (Doc. 2, pp. 7, 9). He also asks for
“freedom.” (Doc. 2, p. 9).

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Merits Review Pursuant to 28 U.S.C. § 1915A
As explained in the order severing Russell’s claims into the present action (Doc. 1), the
Court finds it convenient to divide the pro se action into the following counts. 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. The designation of these counts does not constitute an opinion
as to their merit. Any other claim that is mentioned in the Complaint but not addressed in this
Order should be considered dismissed without prejudice.
Count 1: Deliberate indifference claim against Mount for failing to provide
Russell with treatment or medications for his diagnosed mental health conditions
or for his mental health symptoms that developed after witnessing the cellmate’s
suicide attempt;
Count 2: Deliberate indifference claim for the failure to provide Russell with
medical testing for communicable diseases following his exposure to the
cellmate’s blood;
Count 3: Deliberate indifference claim for the failure to provide Russell with
cleaning supplies or to clean the areas contaminated with blood;
Count 4: Deliberate indifference claim against Roberts for refusing to permit
Russell to leave the cell for recreation.
Count 1 shall proceed in this action for further review. However, Counts 2, 3, and 4, as
pled, fail to state a claim upon which relief may be granted, and shall be dismissed without
prejudice at this time. If Russell chooses to submit an amended complaint including more facts
relevant to these claims, they may be reinstated and given further consideration.
Plaintiff shall also note that in a civil rights action brought pursuant to § 1983, money
damages and injunctive relief may be available if he prevails on his claims. However, release
from custody is not an available remedy in a civil rights action. A prisoner who wishes to
challenge his custody or seek release must do so in a habeas corpus action. See Preiser v.
Rodriguez, 411 U.S. 475, 500 (1973). Further, a federal habeas action may only be maintained if
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the prisoner has first sought relief in the state courts and has pursued “one complete round of the
state’s established appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999);
see 28 U.S.C. § 2254(b)(1)(A).
Count 1 – Deliberate Indifference to Mental Health Needs
As an inmate at the Jefferson County Jail, Russell may be a pre-trial detainee, or may be
serving a sentence following a criminal conviction. The Complaint does not disclose which
status applies to Russell. Either way, similar legal standards apply to his deliberate indifference
claims.
A pre-trial detainee’s claims brought pursuant to § 1983 arise under the Fourteenth
Amendment and not the Eighth Amendment. See Weiss v. Cooley, 230 F.3d 1027, 1032 (7th Cir.
2000). However, 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) (quoting Henderson v. Sheahan, 196 F.3d 839, 845 n.2 (7th Cir. 1999)). To
state a claim for deliberate indifference to medical care, a detainee (or a convicted prisoner) must
show that (1) he suffered from an objectively serious condition which created a substantial risk
of harm, and (2) the defendants were aware of that risk and intentionally disregarded it. Minix v.
Canarecci, 597 F.3d 824, 831 (7th Cir. 2010); Grieveson v. Anderson, 538 F.3d 763, 771-72,
777-79 (7th Cir. 2008); Jackson v. Ill. Medi-Car, Inc., 300 F.3d 760, 764-65 (7th Cir. 2002).
However, evidence that a defendant acted negligently does not raise a claim for deliberate
indifference. Jackson, 300 F.3d at 764-65.
The Seventh Circuit considers the following to be indications of a serious medical need:
(1) where failure to treat the condition could “result in further significant injury or the

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unnecessary and wanton infliction of pain”; (2) “[e]xistence of an injury that a reasonable doctor
or patient would find important and worthy of comment or treatment”; (3) “presence of a
medical condition that significantly affects an individual’s daily activities”; or (4) “the existence
of chronic and substantial pain.” Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997).
Further, the Seventh Circuit has found that “the need for a mental illness to be treated could
certainly be considered a serious medical need.” Sanville v. McCaughtry, 266 F.3d 724, 734 (7th
Cir. 2001); Wellman v. Faulkner, 715 F.2d 269 (7th Cir. 1983).
Count 1 includes Russell’s claims that he was not receiving the medication(s) that had
been prescribed for treatment of one or more of his mental health conditions, which had been
diagnosed before he was incarcerated at the jail. Also included is the claim that Russell asked
for mental health attention/treatment for the serious symptoms he began to experience after
witnessing the traumatic event of his cellmate’s suicide attempt, and intervening to help save the
man’s life. Both of these matters satisfy the first element of a deliberate indifference claim –
namely, that Russell suffered from an objectively serious health condition.
Russell alleges that he notified Captain Mount of both aspects of his mental health needs
(prescription medication, and assistance for his new symptoms). However, Mount failed to take
any action to obtain medication or other treatment for Russell. At this early stage, the Complaint
states a claim against Mount that merits further review under Count 1.
However, Count 1 shall be dismissed as to all the remaining Defendants. While Russell
mentions that he voiced his mental health needs to other jail officials, including a nurse, and
requested treatment, he does not identify any of those individuals by name in the body of his
Complaint. Therefore, he fails to state a claim upon which relief may be granted against any
other Defendants.

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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 the 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). 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.
The only other Defendant mentioned in connection with Russell’s mental health
condition is Lt. Haynes, who made jokes and mocking comments about Heart’s suicide attempt.
(Doc. 2, p. 16).

While these remarks were distressing to Russell, such insensitive verbal

commentary does not rise to the level of a constitutional violation. See Dobbey v. Ill. Dep’t of
Corrections, 574 F.3d 443, 446 (7th Cir. 2009) (“harassment, while regrettable, is not what
comes to mind when one thinks of ‘cruel and unusual’ punishment”). Thus, Haynes shall also be
dismissed from Count 1 without prejudice.
For these reasons, Count 1 shall proceed at this time only against Mount.
Dismissal of Count 2 – Deliberate Indifference to Medical Needs – Testing
This claim encompasses Russell’s allegations that, after he was covered with his cellmate

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Heart’s blood following the suicide attempt, and then continued to be exposed to the blood for
several days on various surfaces of the cell and furnishings which had not been cleaned, Russell
requested tests to find out if he might have contracted any diseases from this exposure. These
facts are sufficient to meet the requirement that Russell faced an objectively serious risk to his
health from the blood exposure. See Thomas v. Illinois, 697 F.3d 612, 614-15 (7th Cir. 2012)
(depending on severity, duration, nature of the risk, and susceptibility of the inmate, prison
conditions may amount to cruel and unusual punishment if they caused either physical,
psychological, or probabilistic harm).
However, the claim cannot go forward at this time, because Russell fails to identify
which of the Defendants refused to take action to provide him with medical tests, after Russell
notified them of the blood exposure and asked for medical attention. In order to state a viable
deliberate indifference claim, Russell must name the Defendant(s) whom he approached
regarding his medical concern or health risk, indicate what he told the Defendant(s) about his
problem, and describe what the Defendant(s) did or failed to do in response. As the current
Complaint lacks this information, Count 2 shall be dismissed without prejudice.
Dismissal of Count 3 – Denial of Cleaning Supplies/Unsanitary Cell
Plaintiff indicates that after Heart’s suicide attempt, blood was left behind in his cell and
on the table where he ate his meals. This condition remained for at least 4 days, while Russell
and/or his other cellmates asked for cleaning supplies, but were refused.
As with the medical and mental health claims above, a claim over unsanitary or
hazardous conditions of confinement has two elements. 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

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U.S. 825, 834 (1994). The conditions must have resulted in an unquestioned and serious
deprivation of basic human needs such as food, medical care, sanitation, or physical safety.
Rhodes v. Chapman, 452 U.S. 337, 347 (1981). The second requirement is the subjective one of
deliberate indifference to a substantial risk of serious harm to the inmate from those conditions –
where a defendant who is aware of the risk of harm fails to take action to correct the problem.
Farmer, 511 U.S. at 837, 842.
In the present case, Russell has articulated an objectively serious risk of contracting a
communicable disease from exposure to the blood of a person who is an admitted intravenous
drug user, due to jail staff not cleaning the cell or providing cleaning supplies for Russell. This
meets the first (objective) prong of a deliberate indifference claim. However, Russell again fails
to identify which Defendant(s) he asked for help to correct the conditions. The Complaint does
not name any person who was told about the contamination by Russell, but who then failed to
take action. Without this information, the Complaint fails to state a claim upon which relief may
be granted in Count 3. This cell conditions claim shall thus be dismissed without prejudice.
Dismissal of Count 4 – Out-of-Cell Recreation
For this claim, Russell relates that Jennifer Roberts refused to allow him to leave his cell
in order to have recreation time elsewhere in the jail, for three days in a row. This occurred on or
about March 29-30, 2017. (Doc. 2, p. 18). It is not clear from the Complaint where Russell
would have spent his out-of-cell time if Roberts had allowed him out. To the extent he might
have been permitted to engage in some physical activity, the Court shall review whether the
denial of recreation may have violated the Constitution.
The Seventh Circuit has noted that a “[l]ack of exercise could rise to a constitutional
violation where movement is denied and muscles are allowed to atrophy, and the health of the

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individual is threatened.” Harris v. Fleming, 839 F.2d 1232, 1236 (7th Cir. 1988); French v.
Owens, 777 F.2d 1250, 1255 (7th Cir. 1985), cert. denied, 479 U.S. 817 (1986). “Unless extreme
and prolonged, lack of exercise is not equivalent to a medically threatening situation.” Harris,
839 F.2d at 1236 (short periods of exercise denial, such as 28 days, do not violate the
Constitution). However, longer periods without exercise may state a constitutional claim. See
Delaney v. DeTella, 256 F.3d 679, 683-85 (7th Cir. 2001) (6-month denial states a claim; a
strong likelihood of injury is present after 90 days). Furthermore, repeated short-term denials of
exercise privileges may amount to a constitutional violation. Turley v. Rednour, 729 F.3d 645,
652-53 (7th Cir. 2013) (plaintiff stated Eighth Amendment claim where cumulative effect of
repeated lockdowns deprived him of yard privileges, and cell was too small for physical
activity).
In Russell’s case, he complains only that he was denied permission to leave his cell for
recreation/exercise for a 3-day period. This deprivation, in light of the above authority, is too
slight to significantly impact Russell’s health. It therefore does not implicate constitutional
concerns. The facts related in the Complaint fail to support a claim upon which relief may be
granted for an unconstitutional denial of exercise privileges. Count 4 against Roberts shall thus
be dismissed without prejudice.
Pending Motions
The motion for leave to proceed in forma pauperis (“IFP”) (Doc. 3) shall be addressed in
a separate order, after Plaintiff provides his inmate trust fund account records as directed in the
order at Doc. 9.
Plaintiff’s motions for recruitment of counsel (Docs. 4, 7) shall be referred to the United
States Magistrate Judge for further consideration.

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The motion for service of process at government expense (Doc. 5) shall be GRANTED
IN PART AND DENIED IN PART. Service shall be ordered below on the Defendant who
remains in the action. No service shall be made on the dismissed Defendants.
Disposition
COUNTS 2, 3, and 4 are DISMISSED without prejudice for failure to state a claim
upon which relief may be granted.
Defendants MOONEY, MT. VERNON JUSTICE CENTER COUNTY JAIL,
GREENWOOD, ROBERTS, BLANDFORD, CARLTON, HUFF, MEYERS, HAYNES,
MAY, SPARTEGUES, CLARK, SHIRLEY, PAULIUS, FORTAG, EDWARDS, SCOTT,
NANCY, CONWAY, and McKENNETH are DISMISSED from this action without prejudice.
The Clerk of Court shall prepare for Defendant MOUNT: (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 Memorandum and
Order at Doc. 1, a copy of the Complaint (Doc. 2), and this Memorandum and Order to
Defendant’s place of employment as identified by Plaintiff. If 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 Defendant, and the
Court will require Defendant to pay the full costs of formal service, to the extent authorized by
the Federal Rules of Civil Procedure.
If the Defendant cannot be found at the 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

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Clerk. Address information shall not be maintained in the court file, nor disclosed by the Clerk.
Plaintiff shall serve upon Defendant (or upon defense counsel once an appearance is
entered), a copy of every further pleading or other document submitted for consideration by the
Court. Plaintiff shall include with the original paper to be filed a certificate stating the date on
which a true and correct copy of any document was served on Defendant or counsel. Any paper
received by a district judge or magistrate judge that has not been filed with the Clerk or that fails
to include a certificate of service will be disregarded by the Court.
Defendant is 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, which shall include a determination on the
pending motions for recruitment of counsel (Docs. 4 & 7).
Further, this entire matter shall be REFERRED to the 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, notwithstanding that
his application to proceed in forma pauperis has been granted. See 28 U.S.C. § 1915(f)(2)(A).
Finally, Plaintiff is REMINDED 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

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for want of prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: June 7, 2017

s/J. Phil Gilbert
United States District Judge

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