Berry v. Dennison

Filing 10

IT IS HEREBY ORDERED that, for the reasons stated, the Complaint (Doc. 1) is DISMISSED without prejudice for failure to state a claim upon which relief can be granted. IT IS FURTHER ORDERED that, should Plaintiff wish to proceed with this case, Plai ntiff shall file his First Amended Complaint within 28 days of the entry of this order (on or before November 21, 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. (Amended Pleadings due by 11/21/2017). Signed by Judge Staci M. Yandle on 10/24/2017. (tjk)

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

DEWAUN A. BERRY,
No. K56415,
Plaintiff,

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vs.
JEFF DENNISON,
Defendant.

Case No. 17−cv–923-SMY

MEMORANDUM AND ORDER
YANDLE, District Judge:
Plaintiff DeWaun A. Berry, an inmate in Shawnee Correctional Center (“Shawnee”),
brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983.
Plaintiff contends that his constitutional rights have been violated because officials have failed to
repair a hole in his mattress. In connection with this claim, Plaintiff names Jeff Dennison,
Shawnee’s warden, and seeks monetary damages.
This case is now before the Court for a preliminary review of the Complaint (Doc. 1)
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
relief may be granted; or
(2) seeks monetary relief from a defendant who is immune
from such relief.

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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).
The Complaint
Plaintiff alleges that on July 14, 2017, he told a correctional officer (identified as
“Summers”) that the mattress in his bunk was missing “the entire middle section” or the springs.
(Doc. 1, p. 5). The officer told Plaintiff he would turn in a work order, but that he doubted
anything would be done. Id. Plaintiff also submitted a grievance regarding the issue. Id.
On July 19, 2017, Plaintiff was notified that repairs would be made to his bunk the same
day. Id. However, repairs were never made and Plaintiff is still sleeping on the damaged
mattress. Id. Plaintiff claims that sleeping on the damaged mattress is causing severe neck and
back pain. Id.
Discussion
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 regarding its merit.

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Count 1 –

Plaintiff has been subjected to unconstitutional conditions of confinement
(sleeping on a damaged mattress), in violation of the Eighth Amendment.

The Constitution imposes duties on prison officials to provide humane conditions of
confinement. Farmer v. Brennan, 511 U.S. 825, 832 (1994). To succeed on a conditions of
confinement claim, a plaintiff must show that an official “kn[ew] of and disregard[ed] an
excessive risk to inmate health or safety; the official must both [have] be[en] aware of facts from
which the inference could be drawn that a substantial risk of serious harm exists, and he must
[have] also draw[n] the inference.” Del Raine v. Williford, 32 F.3d 1024, 1032 (7th Cir. 1994).
Deliberate indifference requires “more than an ordinary lack of due care for the prisoner's
interests or safety.” Whitely v. Albers, 475 U.S. 31, 319 (1986).
The Seventh Circuit Court of Appeals has repeatedly explained that a plaintiff may bring
a § 1983 claim only against those individuals who are personally responsible for a constitutional
deprivation. See Doyle v. Camelot Care Cntrs, Inc., 305 F.3d 603, 614-15 (7th Cir. 2002). Thus,
under § 1983, a plaintiff may not rely on the doctrine of respondeat superior to hold supervisors
liable for the misconduct of subordinates. See id. Rather, in order to be held liable, supervisors
must have had some personal involvement in the constitutional deprivation, such as directing, or
consenting to, the challenged conduct. See Chavez v. Ill. State Police, 251 F.3d 612, 651 (7th Cir.
2001).
Typically, “inaction following receipt of a complaint about someone else's conduct is not
a source of liability.” Estate of Miller by Chassie v. Marberry, 847 F.3d 425, 428-29 (7th Cir.
2017). 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)).
Nonetheless, under certain circumstances, a prison official’s knowledge of an ongoing
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constitutional violation can trigger a duty to investigate and take action to rectify the violation.
See e.g., Perez v. Fenoglio, 792 F.3d 768, 781-82 (7th Cir. 2015) (“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.”) (citing Vance v. Peters, 97 F.3d 987, 993 (7th Cir. 1996)).
Here, nothing in the Complaint suggests that Dennison was personally involved in any
decisions pertaining to Plaintiff’s allegedly damaged mattress. Nor do the Complaint allegations
suggest that Dennison is subject to liability under Perez or related authority. As Dennison is the
only defendant named in the Complaint, the Complaint is subject to dismissal for failure to state
a claim upon which relief can be granted. However, the dismissal will be without prejudice and
with leave to amend.
Disposition
IT IS HEREBY ORDERED that, for the reasons stated, the Complaint (Doc. 1) is
DISMISSED without prejudice for failure to state a claim upon which relief can be granted.
IT IS FURTHER ORDERED that, should Plaintiff wish to proceed with this case,
Plaintiff shall file his First Amended Complaint within 28 days of the entry of this order (on or
before November 21, 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

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dismissal shall count as one of Plaintiff’s three allotted “strikes” within the meaning of 28 U.S.C.
§ 1915(g).
It is strongly recommended that Plaintiff use the form designed for use in this Court for
civil rights actions. Plaintiff should label the pleading “First Amended Complaint,” and he
should include Case Number 17-cv-923-SMY. The narrative of the First Amended Complaint
should specify what each named Defendant did to violate Plaintiff’s rights in connection with
Plaintiff’s allegedly damaged mattress.
An amended complaint supersedes and replaces all previous complaints, rendering
previous complaints void. See Flannery v. Recording Indus. Ass’n of Am., 354 F.3d 632, 638 n.1
(7th Cir. 2004). As the Court has previously explained (Doc. 7), the Court will not accept
piecemeal amendments to a complaint. Thus, the First Amended Complaint must stand on its
own, without reference to any other pleading. Should the First Amended Complaint not conform
to these requirements, it shall be stricken.
In order to assist Plaintiff in preparing his First Amended Complaint, the CLERK is
DIRECTED to mail Plaintiff a blank civil rights complaint form.
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

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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: October 24, 2017
s/ STACI M. YANDLE
STACI M. YANDLE
United States District Judge

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