Thomas v. Weaver et al

Filing 8

ORDER DISMISSING 4 Complaint and DENYING 3 Motion for Recruitment of Counsel without prejudice. The Complaint (including COUNT 1) is DISMISSED without prejudice for failure to state a claim upon which relief may be granted. Defendants SGT. WEAVER , SGT. MASON, MS. McDONALD, and C/O THRASHER are DISMISSED without prejudice from the action. Plaintiff is GRANTED leave to file a "First Amended Complaint" on or before November 1, 2019. Should Plaintiff fail to file a First Amended Compla int 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. CIV. P. 41(b); La dien 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). The dismissal shall also count as one of Plaintiff's three allotted "strikes" under 28 U.S.C. 1915(g). Signed by Chief Judge Nancy J. Rosenstengel on 10/4/2019. (jsy) Modified on 10/7/2019 (jaj).

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
FREDERICK THOMAS, #M18843,
Plaintiff,
vs.
SGT. WEAVER,
SGT. MASON,
MS. McDONALD,
and WARDEN GOINGS,
Defendants.

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Case No. 19-cv-00865-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, Chief Judge:
Plaintiff Frederick Thomas, an inmate in the Illinois Department of Corrections who is
currently incarcerated in Lawrence Correctional Center (“Lawrence”), brings this civil rights
action pro se pursuant to 42 U.S.C. § 1983 to address unconstitutional conditions of confinement
at Lawrence. Plaintiff specifically complains about a lack of hot water in his cell. (Doc. 4, pp. 19). He requests money damages and injunctive relief. 1 (Id. at pp. 1, 7).
The Complaint is now before the Court for preliminary review under 28 U.S.C. § 1915A,
which requires the Court to screen prisoner complaints and filter out non-meritorious claims.
28 U.S.C. § 1915A(a). Any portion of a complaint that is legally frivolous or malicious, fails to
state a claim, or asks for money damages from a defendant who by law is immune from such relief
must be dismissed. 28 U.S.C. § 1915A(b). The factual allegations of the pro se complaint are
liberally construed. Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).

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Plaintiff includes a request for unspecified injunctive relief in the opening paragraph of the Complaint but
does not mention this request anywhere else.

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The Complaint
Plaintiff makes the following allegations in the Complaint: While housed in Cell R6-C
Wing-Lower 5 from May 21-28, 2019, Plaintiff had no access to hot water. 2 (Doc. 4, pp. 1-7). As
a result, he was unable to properly shower, wash hands, or clean dishes. (Id. at p. 2). Defendants
were aware of Plaintiff’s “general needs” and knew, or should have known, that having no hot
water violated his rights under the Eighth Amendment. (Id. at pp. 4-7).
Discussion
Based on the allegations, the Court deems it appropriate to designate a single count in the
pro se Complaint:
Count 1:

Eighth Amendment claim against Defendants for denying Plaintiff
access to hot water in his cell (#R6-C Wing-Lower 5) from May 2128, 2019.

The parties and the Court will use these designations in all future pleadings and orders, unless
otherwise directed by this Court. Any claim mentioned in the Complaint but not addressed
herein is considered dismissed without prejudice under Twombly. 3
In evaluating an Eighth Amendment claim for unconstitutional conditions of confinement,
the Court conducts an objective and a subjective inquiry. Farmer v. Brennan, 511 U.S. 825, 834
(1994). To satisfy the objective inquiry, the alleged deprivation must be sufficiently serious. Id. at
837. To satisfy the subjective inquiry, the defendants must act with deliberate indifference.
Plaintiff’s claim satisfies neither requirement.
Conditions are sufficiently serious if they deprive an inmate of the minimal civilized
measure of life’s necessities, such as food, clothing, heat, shelter, bedding, cleaning supplies, and

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Plaintiff also mentions that he is now housed in a cell lacking hot water, a working toilet, and an
operational sink, but this claim forms the basis of another Complaint he filed to address conditions in Cell
R6-CL-05. Thomas v. Weaver, et al., No. 19-cv-00966-NJR (S.D. Ill. filed Aug. 7, 2019).
3
See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

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hygiene items. Gillis v. Litscher, 468 F.3d 488, 493 (7th Cir. 2006) (collecting cases). The Seventh
Circuit has made clear that an “adverse condition of confinement, if endured over a significant
time, can become an Eighth Amendment violation even if it would not be impermissible if it were
only a short-term problem.” Knight v. Wiseman, 590 F.3d 458, 463 (7th Cir. 2009). But a week
without hot water amounts to an inconvenience and nothing more. Prisoners do not have a
constitutional right to hot water. Hopkins v. Klindworth, 556 F. App’x 497 (7th Cir. 2014) (district
court properly dismissed claim regarding placement in cell lacking hot water) (citing Lopez v.
Robinson, 914 F.2d 486, 492 (4th Cir. 1990) (“[T]here is no clearly established, sufficiently
contoured, right to hot showers in prison.”)). This condition is simply not serious enough to support
a claim.
Moreover, the allegations do not suggest that Defendants even knew about the lack of hot
water in Cell R6-C Wing-Lower 5. Plaintiff makes no allegation that he notified them of the water
problem, requested repair of it, or requested repair of any related issue. Absent any allegations of
Defendants’ actual knowledge or intentional disregard of the water problem, Plaintiff cannot
demonstrate that they were deliberately indifferent to it. Pepper v. Village of Oak Park, 430 F.3d
809, 810 (7th Cir. 2005) (individual participation in a constitutional deprivation required for
Section 1983 liability to attach).
Pending Motion
Plaintiff’s Motion for Recruitment of Counsel (Doc. 3) is DENIED without prejudice, 4
based on his failure to demonstrate reasonable efforts to locate counsel on his own before seeking
the Court’s assistance or identify any significant impediments to self-representation beyond a
limited education.
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See Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007) (articulating factors district court should consider
when presented with a request for counsel).

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Disposition
IT IS ORDERED that the Complaint (including COUNT 1) is DISMISSED without
prejudice for failure to state a claim upon which relief may be granted.
IT IS ORDERED that Defendants SGT. WEAVER, SGT. MASON, MS. McDONALD,
and C/O THRASHER are DISMISSED without prejudice from the action.
Plaintiff is GRANTED leave to file a “First Amended Complaint” on or before November
1, 2019. Should Plaintiff fail to file a 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. CIV. P. 41(b); 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). The dismissal shall also count as one of
Plaintiff’s three allotted “strikes” under 28 U.S.C. § 1915(g).
It is strongly recommended that Plaintiff use the civil rights complaint form designed for
use in this District. He should label the form, “First Amended Complaint,” and he should use the
case number for this action (No. 19-cv-00866-NJR). To enable Plaintiff to comply with this Order,
the CLERK is DIRECTED to mail Plaintiff a blank civil rights complaint form.
An amended complaint generally 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 First Amended Complaint must stand on its own without reference to any
previous pleading. Plaintiff must re-file any exhibits he wishes the Court to consider. The First
Amended Complaint is also 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 remains due and payable, regardless of

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whether Plaintiff files a First Amended Complaint. 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.
DATED: 10/4/2019
____________________________
NANCY J. ROSENSTENGEL
Chief U.S. District Judge

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