Oden et al v. True et al

Filing 135

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. IT IS HEREBY ORDERED that COUNT 1 shall PROCEED against TRUE and is DISMISSED without prejudice against BOYCE, SESSIONS, and INCH. IT IS FURTHER ORDERED that BOYCE, SESSIONS, and INCH a re DISMISSED from this action without prejudice for failure to state a claim upon which relief may be granted. The Clerk of Court is DIRECTED to complete, on Plaintiffs' behalf, a summons and form USM-285 for service of process on defendant TRUE; the Clerk shall issue the completed summons. Signed by Chief Judge Michael J. Reagan on 9/7/2018. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CHRISTOPHER W. ODEN,
RANDALL PETERSON,
TIMOTHY LOGHRY, SR.,
BRAD MONKMAN,
JEFFERY BROTHERS,
DAVID HOFFARTH,
JAMES SAY,
CORY CUNNINGHAM,
ADAM TURNER, and
MARTIN JONASSEN
Plaintiffs,
vs.
WILLIAM B. TRUE,
DONALD S. BOYCE,
JEFF SESSIONS, and
MARK INCH,
Defendants.

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Case No. 18-cv-600-MJR

MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
Plaintiffs, who are inmates in the United States Penitentiary in Marion, Illinois (“USP
Marion”), bring this action for alleged violations of their constitutional rights by persons acting
under the color of federal authority. See Bivens v. Six Unknown Named Agents, 403 U.S. 388
(1971). This case is now before the Court for a preliminary review of the Complaint (Doc. 1)
pursuant to 28 U.S.C. § 1915A.
Under § 1915A, the Court is required to screen prisoner complaints to filter out nonmeritorious claims. See 28 U.S.C. § 1915A(a). Any portion of a 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, must be dismissed. 28 U.S.C.
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§ 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). 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). 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).
Upon careful review of the Complaint and any supporting exhibits, the Court finds it
appropriate to allow this case to proceed past the threshold stage.
The Complaint
In their Complaint (Doc. 1), Plaintiffs make the following allegations: in Marion USP X,
L, Y, and N units, two additional bunks have been added to “‘single’ man cell[s]” that are less
than 70 sq. ft. in size. (Doc. 1, p. 7). This causes “duress, stress, overcrowding, cell conflicts,
assaults, privacy, due process violation[s], and [affects] the mental soundness” of inmates. Id.
The configuration of the cells also results in various types of injuries to inmates. Id. USP
Marion has up to 480 extra inmates. (Doc. 1, p. 8). This affects inmates’ access to the law
library, jobs and pay, re-entry classes, and proper ventilation. Id. It also causes a high rate of
assaults, the spread of infectious diseases, and other safety and security issues. Id. There is also
black mold and extreme humidity in certain cells. (Doc. 1-3, p. 2). Additionally, 45 sq. ft. single
occupancy cells in the Special Housing Unit are being used to house two men. Id. Plaintiffs
seek monetary damages and permanent injunctive relief. (Doc. 1, pp. 9-10).
Discussion
Based on the allegations of the Complaint, the Court finds it convenient to designate a
single count in this pro se action. The parties and the Court will use these designations in all

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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
confinement in Marion
occupancy, preventing
opened, and failing to
humidity in the cells.

Plaintiffs to unconstitutional conditions of
USP by overcrowding cells designed for single
cell doors from closing when they have been
remedy black mold in the vents and extreme

As discussed in more detail below, Count 1 will be allowed to proceed past threshold. Any other
intended claim that has not been recognized by the Court is considered dismissed with prejudice
as inadequately pleaded under the Twombly pleading standard.
To state a conditions of confinement claim upon which relief may be granted, Plaintiffs
must allege that, acting with deliberate indifference, the defendants subjected them to conditions
of confinement that deprived them of a basic human need or the minimal civilized measure of
life’s necessities. Rhodes v. Chapman, 452 U.S. 337, 347 (1981); Farmer v. Brennan, 511 U.S.
825, 832 (1994). A defendant acts with deliberate indifference when he or she is subjectively
aware that a prisoner faces a serious risk of harm and consciously disregards the risk. Id. at 837.
At this early stage, Plaintiffs have stated a claim under this standard against Defendant
William B. True, the Warden at USP Marion, for maintaining the allegedly unconstitutional
conditions. See (Doc. 1-3); (Doc. 1-2, pp. 5, 8). Plaintiffs have failed to state a claim against the
remaining defendants, however. 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). Further, “individual liability under § 1983 requires ‘personal involvement in the
alleged constitutional deprivation.’” Minix v. Canarecci, 597 F.3d 824, 833 (7th Cir. 2010)
(citation and quotation marks omitted). Plaintiffs have failed to allege personal involvement on
the part of Defendants Boyce, Sessions, and Inch, so Count 1 will be dismissed as against them.

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Pending Motions
Plaintiffs’ Traverse for Class Action / Motion to Certify Class (Doc. 14) is DENIED
without prejudice. See Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975) (holding it
would be plain error to permit imprisoned pro se litigant to represent his fellow inmates in a
class action).

The Federal Rules permit class actions to be maintained only if the class

representative (in this case the pro se Mr. Oden) “will fairly and adequately protect the interests
of the class,” FED. R. CIV. P. 23(a)(4), and “[e]very court that has considered the issue has held
that a prisoner proceeding pro se is inadequate to represent the interests of his fellow inmates in
a class action.” Lee v. Gardinez, No. 11-cv-570-GPM, 2012 WL 143612, at *1 n.1 (S.D. Ill.,
Jan. 18, 2012) (quoting Craig v. Cohn, 80 F. Supp. 2d 944, 946 (N.D. Ind. 2000)).
Plaintiff’s Motion for Leave to Proceed Writ of Praecipe and for Appointment of Counsel
(Doc. 15) is also DENIED. To the extent the motion requests approval for the Plaintiffs to
proceed without prepayment of fees and costs, it is moot, as the Plaintiffs’ motions to proceed in
forma pauperis have properly been granted. To the extent the motion seeks appointment of
counsel, it is 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 (7th Cir. 2007).
With regard to the first step of the inquiry, Plaintiffs claim that they have written
numerous letters to different attorneys with no response. (Doc. 15, p. 2). Plaintiffs failed to

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specify the attorneys they requested assistance from or the dates on which they sent the letters,
however. They also failed to attach copies of the letters to their motion. The Court therefore
does not find that Plaintiffs made a reasonable attempt to find counsel. Even if they had made a
reasonable attempt, because Plaintiffs adequately articulated their claims in the Complaint, the
Court does not find that they are incompetent to litigate this action themselves, at least at this
stage. Notably, the motion is being denied without prejudice. Plaintiffs may therefore choose to
file another motion for recruitment of counsel at a later stage in the litigation.
Disposition
IT IS HEREBY ORDERED that COUNT 1 shall PROCEED against TRUE and is
DISMISSED without prejudice against BOYCE, SESSIONS, and INCH.
IT IS FURTHER ORDERED that BOYCE, SESSIONS, and INCH are DISMISSED
from this action without prejudice for failure to state a claim upon which relief may be granted.
The Clerk of Court is DIRECTED to complete, on Plaintiffs’ behalf, a summons and
form USM-285 for service of process on defendant TRUE; the Clerk shall issue the completed
summons. The United States Marshal SHALL serve defendant TRUE pursuant to Rule 4(e) of
the Federal Rules of Civil Procedure. 1 All costs of service shall be advanced by the United
States, and the Clerk shall provide all necessary materials and copies to the United States
Marshals Service.
In addition, pursuant to Federal Rule of Civil Procedure 4(i), the Clerk shall (1)
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Rule 4(e) provides, “an individual – other than a minor, an incompetent person, or a person
whose waiver has been filed – may be served in a judicial district of the United States by: (1) following
state law for serving a summons in an action brought in courts of general jurisdiction in the state where
the district court is located or where service is made; or (2) doing any of the following: (A) delivering a
copy of the summons and of the complaint to the individual personally; (B) leaving a copy of each at the
individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides
there; or (C) delivering a copy of each to an agent authorized by appointment or law to receive service of
process.”

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personally deliver to or send by registered or certified mail addressed to the civil-process clerk at
the office of the United States Attorney for the Southern District of Illinois a copy of the
summons, the Complaint, and this Memorandum and Order; and (2) send by registered or
certified mail to the Attorney General of the United States at Washington, D.C., a copy of the
summons, the Complaint, and this Memorandum and Order.
Defendant True 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 United States Magistrate
Judge Stephen C. Williams for further pre-trial proceedings. Further, this entire matter shall be
REFERRED to United States Magistrate Judge Williams for disposition, pursuant to
Local Rule 72.2(b)(3) and 28 U.S.C. § 636(c), if all parties consent to such a referral.
If judgment is rendered against Plaintiffs, and the judgment includes the payment of costs
under § 1915, Plaintiffs will be required to pay the full amount of the costs, even though their
applications to proceed in forma pauperis were granted. See 28 U.S.C. § 1915(f)(2)(A).
Finally, Plaintiffs are ADVISED that they are under a continuing obligation to keep the
Clerk of Court and each opposing party informed of any change in their addresses; the Court will
not independently investigate their 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 a plaintiff
from this action for want of prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: September 7, 2018

s/ MICHAEL J. REAGAN
United States Chief District Judge

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