Flores v. Lamb et al

Filing 9

IT IS ORDERED that Plaintiff is GRANTED leave to file a First Amended Complaint in this case on or before 28 days from the date this Order issues. Should Plaintiff fail to file his First Amended Complaint within the allotted time, dismissal of this action will become with prejudice. (Amended Pleadings due by 5/24/2018). Signed by Judge David R. Herndon on 4/24/2018. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JUAN J. FLORES,
#N90266,
Plaintiff,
vs.
NICHOLAS LAMB,
M. WEAVER,
MR. TANNER,
MR. BROOKS,
LT. OCHS,
and MS. HOPPER,
Defendants.

Case No. 18-cv-523-DRH
MEMORANDUM AND ORDER

HERNDON, District Judge:
Plaintiff Juan Flores, an inmate who is currently incarcerated at Lincoln
Correctional Center, brings this action pursuant to 42 U.S.C. § 1983 against
officials at Lawrence Correctional Center (“Lawrence”). In the Complaint, Plaintiff
alleges that prison officials ignored his medical permit for a lower gallery and low
bunk assignment on February 11, 2017, when a plumbing problem at the prison
necessitated a “mass move” of inmates from the lower galleries to the upper
galleries. (Doc. 1, pp. 6-10). Following the move, Plaintiff fell down the stairs and
injured himself. Id. He now sues those prison officials who refused to honor his
permit when moving him to a new cell. Id. Plaintiff seeks monetary damages and
injunctive relief. (Doc. 1, p. 10).

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The Complaint is now subject to preliminary review 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.
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, 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.
The Complaint
According to the allegations in the Complaint, Plaintiff was housed in a
lower gallery at Lawrence (Cell 7-B-Lower-20) on February 11, 2017, when a
plumbing problem necessitated the “mass move” of inmates to cells in the upper
galleries. (Doc. 1, pp. 6-7). At the time, Plaintiff was in possession of a medical
permit for a lower gallery and low bunk. Id. The prison’s physician, Doctor Coe,

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issued the permit for an indefinite term on July 18, 2016. Id. The defendants
were aware of the permit when they made the decision to move Plaintiff to an
upper gallery (Cell 6-A-Upper-16). Id.
Inmates were allegedly moved to highly undesirable locations. (Doc. 1, p.
9). They were placed in cells with prisoners who were deemed to be mentally ill,
predatory, or unsanitary.

Id.

Plaintiff does not describe his own living

arrangements, cell assignment, or conditions after the move. Id. However, he
says that the staff had a widespread practice of “turning a blind eye” to these
living arrangements, regardless of the safety hazards they posed to inmates. Id.
On February 13, 2017, Plaintiff fell down the stairs while attempting to use
the phone.

(Doc. 1, p. 7).

C/O Johnson1 witnessed the fall, as did several

inmates. Id. Plaintiff sustained injuries to his back and hip that resulted in a
loss of mobility. Id. He now requires an assistive device. Id. He also suffers
from pain that necessitates his use of medication on a daily basis. Id. Plaintiff
does not assert a claim for the denial of medical care arising from his fall. (Doc.
1).
He instead brings this suit against those prison officials who were
responsible for moving him to an upper gallery, in violation of his medical permit.
(Doc. 1, pp. 1-3).

This includes C/O Weaver and C/O Hopper, the two placement

officers who were responsible for classifying inmates and making housing
decisions on February 11, 2017. Id. He also names C/O Tanner and C/O Brooks,

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This individual is not named as a defendant, and Plaintiff asserts no claims against him
or her.

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two wing officers who coordinated the transfer of inmates from the lower galleries
to the upper galleries on February 11, 2017. (Doc. 1, p. 7). Plaintiff informed
both wing officers about his medical permit before the move, and they promised
to transfer him to a cell in the lower gallery once the plumbing problem was
addressed. Id. Plaintiff also names two supervisory officials, Zone Lieutenant
Ochs and Warden Lamb, both of whom were allegedly aware of his medical permit
on February 11, 2017. (Doc. 1, p. 8).
Plaintiff

asserts

claims

against

the

defendants

under

the

Eighth

Amendment. (Doc. 1, pp. 6-9). He seeks monetary damages against them. (Doc.
1, p. 10).

He also seeks an injunction prohibiting Lawrence officials from

interfering with his ability to exhaust his administrative remedies by mishandling
his grievances and prohibiting prison officials from placing inmates with a lower
gallery and low bunk permit in upper galleries or upper bunks.2 (Doc. 1, p. 9).
Discussion
To facilitate the orderly management of future proceedings in this case, and
in accordance with the objectives of Federal Rules of Civil Procedure 8(e) and

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Plaintiff’s request for permanent injunctive relief appears to be moot. He is no longer
housed at Lawrence. He transferred to Lincoln Correctional Center before filing this
action. Further, Plaintiff does not indicate that he anticipates returning to Lawrence.
“[W]hen a prisoner who seeks injunctive relief for a condition specific to a particular
prison is transferred out of that prison, the need for relief, and hence the prisoner’s
claim, become moot.” Lehn v. Holmes, 364 F.3d 862, 871 (7th Cir. 2004). See also
Higgason v. Farley, 83 F.3d 807, 811 (7th Cir. 1995). Only if Plaintiff can show a
realistic possibility that he would again be incarcerated at Lawrence under the conditions
described in the Complaint, would it be proper for the Court to consider injunctive relief.
See Maddox v. Love, 655 F.3d 709, 716 (7th Cir. 2011) (citing Ortiz v. Downey, 561
F.3d 664, 668 (7th Cir. 2009)).

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10(b), the Court deems it appropriate to re-characterize the claims in the
Complaint into the following enumerated counts:
Count 1 -

Eighth Amendment deliberate indifference claim against
Defendants for ignoring Plaintiff’s permit for a lower gallery
and low bunk on February 11, 2017, which resulted in his fall
down a set of stairs at the prison and injuries to his back and
hip two days later.

Count 2 -

Claim against Defendants under the Americans with
Disabilities Act (“ADA”) and/or Rehabilitation Act for failing to
accommodate Plaintiff’s disability on February 11, 2017, when
they moved him to an upper gallery in violation of his medical
permit.

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. Any claims
not identified above but encompassed by the allegations in the Complaint are
considered dismissed without prejudice from this action.
Count 1
The Eighth Amendment prohibits the cruel and unusual punishment of
prisoners.

U.S. CONST., amend VIII.

It protects prisoners from conditions of

confinement that pose a substantial risk of serious harm to their health or safety.
Estate of Miller, ex rel. Bertram v. Tobiasz, 680 F.3d 984 (7th Cir. 2012). Not
all prison conditions trigger Eighth Amendment scrutiny—only deprivations of
basic human needs such as food, medical care, sanitation, and physical safety.
Rhodes v. Chapman, 452 U.S. 337, 346-47 (1981); James v. Milwaukee Cnty.,
956 F.2d 696, 699 (7th Cir. 1992).

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All Eighth Amendment claims consist of an objective and a subjective
element. Wilson v. Seiter, 501 U.S. 294, 302-04 (1991); McNeil v. Lane, 16 F.3d
123, 124 (7th Cir. 1994). The objective element focuses on the nature of the acts
or practices alleged to constitute cruel and unusual punishment.

Jackson v.

Duckworth, 95 F.2d 21, 22 (7th Cir. 1992). It examines whether the conditions
of confinement exceed contemporary bounds of decency of a mature civilized
society. Id. To support a claim, the condition must result in an unquestioned
and serious deprivation of basic human needs.

Rhodes, 452 U.S. at 347;

Jamison-Bey v. Thieret, 867 F.2d 1046-48 (7th Cir. 1989); Meriwether v.
Faulkner, 821 F.2d 408, 416 (7th Cir. 1987). The subjective element focuses on
the state of mind of the defendant and requires a showing that the defendant
acted with deliberate indifference, i.e., that he or she acted or failed to act despite
having knowledge of a substantial risk of serious harm to the inmate. Farmer v.
Brennan, 511 U.S. 834, 842 (1994).
The Court lacks enough information to determine whether Plaintiff suffered
from a sufficiently serious deprivation to support a claim for unconstitutional
conditions of confinement. Plaintiff does not describe his living conditions after
February 11, 2017, beyond stating that he was moved to an upper gallery due to a
plumbing problem at the prison. (Doc. 1, pp. 6-9). He does not indicate how long
he remained there, and his temporary move does not necessarily support an
Eighth Amendment claim.

See Lunsford v. Bennett, 17 F.3d 1574 (7th Cir.

1994) (a temporary discomfort affecting only a few inmates hardly violates

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common notions of decency) (citing Harris v. Fleming, 839 F.2d 1232 (7th Cir.
1988)). Without any indication of where Plaintiff was ultimately placed, which
bunk he was assigned, or how long he remained housed in an upper gallery, the
Court cannot conclude that the conditions posed a danger of constitutional
magnitude. Id.
In the medical context, the objective component requires the plaintiff to
demonstrate that he suffered from a sufficiently serious medical condition.
Gutierrez v. Peters, 111 F.3d 1364, 1369 (7th Cir. 1997). A serious medical
condition is one that is “diagnosed by a physician as requiring treatment, or [is] . .
. so obvious a layperson would easily recognize the necessity for medical
attention.” Id. at 1372-73. In other words, a serious medical condition does not
encompass every ache, pain, or medically recognized condition that involves
discomfort. Gutierrez, 111 F.3d at 1372.
The allegations in the Complaint also do not satisfy the objective
component of a medical claim. Plaintiff does not identify the medical condition
that necessitated his medical permit. (Doc. 1, pp. 13-22). The exhibits do not
include a copy of the permit or describe the underlying condition at all. (Doc. 1,
pp. 6-9). Without any information about Plaintiff’s medical condition, the Court
cannot determine whether it was sufficiently serious to support an Eighth
Amendment claim.

Whether viewed as a claim based on unconstitutional

conditions of confinement or the denial of medical care, the objective component
of this claim is not satisfied by the allegations in the Complaint.

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The subjective component of the claim cannot be evaluated. Absent any
information regarding the nature of Plaintiff’s underlying medical condition or the
conditions he actually faced, the Court is unable to determine whether each
defendant’s response amounted to deliberate indifference.

Because neither

element of this claim is satisfied, Count 1 shall be dismissed without prejudice
against all of the defendants. Plaintiff may re-plead this claim in an amended
complaint in this case or in a separate action.
Count 2
The Complaint supports no claim against the defendants under the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., or the
Rehabilitation Act, 29 U.S.C. §§ 794-94e. Title II of the ADA provides that “no
qualified individual with a disability shall, because of that disability . . . be denied
the benefits of the services, programs, or activities of a public entity, or be
subjected to discrimination by any such entity.” 42 U.S.C. § 12132 (2006). The
Rehabilitation Act prohibits discrimination by entities receiving federal funding
(such as state prisons) against qualified individuals based on a physical or mental
disability. See 29 U.S.C. §§ 794-94e. Discrimination under both includes the
failure to accommodate a disability. Jaros v. Illinois Dep’t of Corrections, 684
F.3d 667, 671 (7th Cir. 2012).
The Court finds no basis for a claim under the ADA or Rehabilitation Act.
Plaintiff has not alleged that he is a qualified individual with a disability or that he
was subject to discrimination at the prison.

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Further, he has not named the

proper defendant in connection with an ADA or Rehabilitation Act claim. The
proper defendant is the relevant state department or agency, such as the Illinois
Department of Corrections (“IDOC”) or its director, acting in his or her official
capacity. See 42 U.S.C. § 12131(1)(b); Jaros, 684 F.3d at 670 n. 2 (individual
capacity claims are not available; the proper defendant is the agency or its
director (in his or her official capacity)). Given this, Count 2 shall be dismissed
with prejudice against the individual defendants. However, Plaintiff may re-plead
this claim against the IDOC or the IDOC Director (in his or her official capacity) in
an amended complaint in this action or by bringing a separate action to address
this claim.
Pending Motion
Plaintiff’s Motion to Appoint Counsel (Doc. 3) is DENIED without prejudice.
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—

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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.
Plaintiff has not cleared the first hurdle. He filed an incomplete motion in
support of his request.

(Doc. 3).

In it, he discloses no efforts to secure an

attorney on his own before seeking the Court’s assistance. (Doc. 3, p. 1). When
prompted to do so, he left the section blank.

Id.

Further, beyond a limited

education, he disclosed no other impediments to proceeding with his case pro se,
such as emotional, intellectual, physical, language, or other barriers. (Doc. 3, pp.
1-2). Finally, he has not demonstrated the need for counsel at this time. Plaintiff
has clearly articulated his claims and demonstrated an ability to prepare
pleadings and communicate in writing.

Given these considerations, Plaintiff’s

request for counsel is denied. However, the denial is without prejudice, and the
Court remains open to recruiting counsel on Plaintiff’s behalf as the case
proceeds, if he is unable to do so on his own and demonstrates the need for
counsel.

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Disposition
IT IS HEREBY ORDERED that the Complaint, including COUNTS 1 and
2, is DISMISSED without prejudice for failure to state a claim upon which relief
may be granted.
IT IS ORDERED that COUNT 1 is DISMISSED without prejudice against
Defendants LAMB, WEAVER, TANNER, BROOKS, OCHS, and HOPPER for
failure to state a claim upon which relief may be granted.
IT IS ORDERED that COUNT 2 is DISMISSED with prejudice against
Defendants LAMB, WEAVER, TANNER, BROOKS, OCHS, and HOPPER, in
their individual capacities, for failure to state a claim upon which relief may be
granted.
IT IS FURTHER ORDERED that Plaintiff is GRANTED leave to file a “First
Amended Complaint” in this case on or before 28 days from the date this Order
issues.

Should Plaintiff fail to file his First Amended Complaint within the

allotted time, dismissal of this action will become with prejudice. FED. R. CIV. 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). Further, a “strike” will be
assessed. See 28 U.S.C. § 1915(g).
Should Plaintiff decide to file an amended complaint, it is strongly
recommended that he use the forms designed for use in this District for such
actions. He should be careful to label the pleading, “First Amended Complaint,”
and he must list this case number (Case No. 18-cv-523-DRH) on the first page.
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To enable Plaintiff to comply with this Order, the Clerk is DIRECTED to mail
Plaintiff a blank civil rights complaint form, as well as a form motion for
recruitment of counsel.
In the amended complaint, Plaintiff must describe the actions taken by each
defendant that resulted in the deprivation of his federal, constitutional, and/or
statutory rights.

He 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 or including
any other unrelated claims in his amended complaint. He must include a request
for relief, which typically includes money damages, injunctive relief, or both. See
FED. R. CIV. P. 8(a)(3). Claims found to be unrelated will be further severed into
new cases, new case numbers will be assigned, and additional filing fees will be
assessed.
Plaintiff is ADVISED that this dismissal shall not count as one of his
allotted “strikes” under the provisions of 28 U.S.C. § 1915(g).
An amended complaint supersedes and replaces the original Complaint,
rendering the original 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

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Complaint. Finally, the First Amended Complaint is subject to review pursuant to
28 U.S.C. § 1915A.
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.

Judge Herndon
2018.04.24
14:54:57 -05'00'
United States District Judge

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