Palmer v. Baldwin et al

Filing 7

MEMORANDUM AND ORDER: Plaintiff's Complaint is DISMISSED without prejudice for failure to state a claim upon which relief may be granted. Plaintiff is Granted leave to file a "First Amended Complaint" on or before August 14, 2017. 4 MOTION for Service of Process at Government Expense is denied as moot, 3 MOTION for Recruitment of Counsel is denied without prejudice. Parties John Baldwin (Director IDOC) and Matthew Swalls (Warden, Vienna CC) are terminated. Signed by Chief Judge Michael J. Reagan on 7/17/2017. (jaj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

BILLY D. PALMER, #B74805,
Plaintiff,
vs.
JOHN BALDWIN, and
MATTHEW SWALLS,
Defendants.

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Case No. 17−cv–0585−MJR

MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
Plaintiff Billy Palmer, an inmate in Vienna Correctional Center (“Vienna”), brings this
action for deprivations of his constitutional rights that allegedly occurred during his confinement
at Vienna. Plaintiff indicated on the cover page of his Complaint that it is brought pursuant to
the Federal Tort Claims Act, 1 28 U.S.C. §§ 1346, 2671–2680 (Doc. 1, p. 1). However, because
Plaintiff is a state prisoner, he clearly claims that his constitutional rights were infringed, and he
names no federal entities in connection with his claims, the Court construes this case as a civil
rights action brought pursuant to 42 U.S.C. § 1983.
In his Complaint, Plaintiff claims he has been subjected to unconstitutional conditions of
confinement and unreliable phone services in violation of the Eighth and First Amendments.
(Doc. 1). Plaintiff seeks permanent injunctive relief from the defendants. (Doc. 1, p. 6). This
case is now before the Court for a preliminary review of the Complaint pursuant to 28 U.S.C.
§ 1915A, which provides:

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The FTCA provides jurisdiction for suits against the United States regarding torts committed by
federal officials, not state officials. Therefore, Plaintiff's claims do not fall within the jurisdiction of the
FTCA.

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(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.
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).
After fully considering the allegations in Plaintiff’s Complaint, the Court concludes that
this action is subject to summary dismissal.
The Complaint
In his Complaint (Doc. 1), Plaintiff makes the following allegations: the Vienna “facility
has failed to abide by Food Service safety guidelines by: a) Workers and staff not wearing beard
nets while serving b) Staff serving without hair or beard net[s] . . . c) Roaches and mice being
able to run around food service area while serving d) Fans blowing debris into food on food
service line e) open building allowing birds inside dining area and flying over while trying to

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eat.” (Doc. 1, p. 5). Further, the facility has “fail[ed] to maintain phone service” by randomly
disconnecting phones, ending inmate calls despite a full charge being assessed, and “failing /
refusing to correct the disconnection issue, even after staff confirms the problem.” Id.
Plaintiff seeks an order requiring the Illinois Department of Corrections (“IDOC”) and
Vienna “to immediately begin complying with Food, Health, and Safety Guidelines” and “to
correct phone access issues and refund lost charges.” (Doc. 1, p. 6).
Discussion
Based on the allegations of the Complaint, the Court finds it convenient to divide the pro
se action into 2 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 regarding their merit.
Count 1 –

Defendants subjected Plaintiff to unconstitutional conditions of
confinement in violation of the Eighth Amendment by failing to abide by
certain food service safety guidelines.

Count 2 –

Defendants failed to maintain consistent phone services at Vienna in
violation of the First Amendment.

As discussed in more detail below, Counts 1 and 2 will be dismissed for failure to state a
claim upon which relief may be granted. Any other intended claim that has not been recognized
by the Court is considered dismissed without prejudice as inadequately pleaded under the
Twombly pleading standard.
Count 1
To prevail on an Eighth Amendment claim based on inadequate prison conditions, the
prisoner must show that (1) the conditions in the prison were objectively “sufficiently serious so
that a prison official's act or omission results in the denial of the minimal civilized measure of
life's necessities,” and (2) prison officials acted with deliberate indifference to those conditions.
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Townsend v. Fuchs, 522 F.3d 765, 773 (7th Cir. 2008) (internal citations and quotation marks
omitted). Prisons are required to “provid[e] nutritionally adequate food that is prepared and
served under conditions which do not present an immediate danger to the health and well being
of the inmates who consume it.” French v. Owens, 777 F.2d 1250, 1255 (7th Cir.1985), cert.
denied, 479 U.S. 817, 107 S.Ct. 77, 93 L.Ed.2d 32 (1986).
While it is a close call whether the conditions of the food service at Vienna “present an
immediate danger to [Plaintiff’s] health and well being” as described, particularly because
Plaintiff did not allege that he considers himself to be in any danger, Plaintiff failed to allege that
either of the defendants acted with deliberate indifference to these conditions, or were even
aware of them.

Plaintiff has therefore not satisfied the second element of his deliberate

indifference claim, and Count 1 will be dismissed without prejudice as against both defendants.
Count 2
The Supreme Court has recognized that “[p]rison walls do not form a barrier separating
prison inmates from the protections of the Constitution,” Turner v. Safley, 482 U.S. 78, 84, 107
S.Ct. 2254, 2259, 96 L.Ed.2d 64 (1987), “nor do they bar free citizens from exercising their own
constitutional rights by reaching out to those on the ‘inside.’” Thornburgh v. Abbott, 490 U.S.
401, 407, 109 S.Ct. 1874, 1878, 104 L.Ed.2d 459 (1989). The federal courts have accordingly
held that prison inmates retain their First Amendment rights to communicate with family and
friends, including reasonable access to the telephone. Unreasonable restrictions on prisoners’
telephone access may violate the First and Fourteenth Amendment. Tucker v. Randall, 948 F.2d
388, 391 (7th Cir. 1991). Denial of attorney telephone calls, furthermore, would also run afoul
of the Sixth and First Amendments. Id.
However, the First Amendment’s protection of communication is not without restriction,

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due to the security problems inherent in correctional facilities. Martin v. Tyson, 845 F.2d 1451,
1457 (7th Cir. 1988), cert. denied, 488 U.S. 863, 109 S.Ct. 162, 102 L.Ed.2d 133 (1988) (citing
Martin v. Brewer, 830 F.2d 76, 78 (7th Cir. 1987)). An inmate “has no right to unlimited
telephone use.” Benzel v. Grammer, 869 F.2d 1105, 1108 (8th Cir. 1989), cert. denied, 493 U.S.
895, 110 S.Ct. 244, 107 L.Ed.2d 194 (1989). Instead, the exact nature of telephone service to be
provided to inmates is generally to be determined by prison administrators, “subject to court
scrutiny for unreasonable restrictions.” Washington v. Reno, 35 F.3d 1093, 1100 (6th Cir. 1994);
see also Strandberg v. City of Helena, 791 F.2d 744, 747 (9th Cir. 1986).
Plaintiff has failed to allege sufficient facts to state a First Amendment claim based upon
the random disconnection of an unspecified number of phone calls to unspecified individuals.
He has not claimed his access to legal counsel, or the courts, has been impeded. He has also not
alleged that he has been unreasonably prevented from communicating with family and friends
over the phone, only that such communication has, on occasion, been interrupted.
To the extent Plaintiff’s primary concern is with the full charge being imposed on calls
that were otherwise cut short, the Court finds that the fees and costs associated with making calls
from Vienna do not state a cause of action as described. Arsberry v. Illinois, 244 F.3d 558, 564
(7th Cir. 2001) (excessive telephone charge did not implicate prisoner’s First Amendment
rights). Moreover, the Court notes that if Plaintiff's Complaint concerns collect calls, these fees
and costs are likely not even imposed upon (or, presumably) paid by Plaintiff. See id.
For the foregoing reasons, Count 2 of the Complaint shall be dismissed. Out of an
abundance of caution, this dismissal shall be without prejudice.
Defendants
Notably, Plaintiff lists John Baldwin (the Director of IDOC) and Matthew Swalls (the

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Warden of Vienna) as the defendants, but makes no allegations against either of them in the body
of the Complaint. 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).

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 either defendant 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.
Accordingly, Baldwin and Swalls will be dismissed from this action without prejudice.
Pending Motions
Plaintiff has filed a Motion for Recruitment of Counsel (Doc. 3) which is hereby
DENIED without prejudice. 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). Federal
District Courts have discretion under 28 U.S.C. § 1915(e)(1) to request counsel to assist pro se
litigants. Id. 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).

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With regard to the first step of the inquiry, there is no indication whether Plaintiff has
attempted to obtain counsel on his own, or has been effectively precluded from doing so.
Because Plaintiff has not made this showing, the Court finds that Plaintiff has not made a
reasonable attempt to find counsel. Therefore, Plaintiff’s motion for the appointment of counsel
merits denial.
Plaintiff's Motion for Service of Process at Government Expense (Doc. 4) is DENIED as
moot. Plaintiff is advised that it is not necessary for a litigant proceeding in forma pauperis to
file a motion requesting service of process by the United States Marshal Service or other process
server. The Clerk will issue summons and the Court will direct service for any complaint that
passes preliminary review.
Disposition
IT IS HEREBY ORDERED that Plaintiff’s Complaint (Doc. 1) is DISMISSED
without prejudice for failure to state a claim upon which relief may be granted.
IT IS FURTHER ORDERED that BALDWIN and SWALLS are DISMISSED
without prejudice because the Complaint fails to state a claim for relief against them.
Plaintiff is GRANTED leave to file a “First Amended Complaint” on or before August
14, 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). 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 First Amended Complaint, it is strongly recommended

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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-585MJR). 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 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 Plaintiff’s Eighth Amendment
deliberate indifference and First Amendment phone access claims will be severed into new cases,
new case numbers will be assigned, and additional filing fees will be assessed. 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.
§ 1915(b)(1); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998).

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See 28 U.S.C.

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.
DATED: July 17, 2017
_s/MICHAEL J. REAGAN____
U.S. Chief District Judge

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