Abuharba v. Doe

Filing 14

Order for Service of Process upon Anthony Wills, Warden of Menard Correctional Center (official capacity). The injunctive relief and official capacity claims are DISMISSED with prejudice. Count 1 will proceed against John Doe but Count 2 is DISMISSED with prejudice. The Clerk of Court is DIRECTED to ADD Anthony Wills, Warden of Menard Correctional Center (official capacity) to the docket for purposes of responding to discovery aimed at identifying the Doe defendant. Additionally, the Clerk is DIRECTED to enter the standard qualified protective order pursuant to the Health Insurance Portability and Accountability Act. Signed by Judge David W. Dugan on 11/18/2021. (ksp)

Case 3:20-cv-00853-DWD Document 14 Filed 11/18/21 Page 1 of 7 Page ID #41

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MOHAMMED ABUHARBA, #Y16719,

)
)
Plaintiff,
)
vs.
)
)
JOHN DOE, C/O, Menard CC, Badge #6566, )
)
Defendant.
)

Case No. 3:20-CV-00853-DWD

MEMORANDUM AND ORDER
DUGAN, District Judge:
Plaintiff Mohammed Abuharba, an inmate of the Illinois Department of
Corrections (“IDOC”) currently incarcerated at Menard Correctional Center, filed the
instant lawsuit pursuant to 42 U.S.C. § 1983 for an alleged deprivation of his
constitutional rights. This case is now before the Court for preliminary review of the
Complaint under 28 U.S.C. § 1915A. Any portion of the Complaint that is legally
frivolous, malicious, fails to state a claim for relief, or requests money damages from an
immune defendant must be dismissed. 28 U.S.C. § 1915A(b).
The Complaint
Plaintiff makes the following allegations in the Complaint (Doc. 1): Correctional
Officer John Doe (possibly named Furlow or Furough, Badge #6566) conducted a
shakedown of Plaintiff’s cell on September 30, 2019 and removed his mattress. Doe told
Plaintiff “you don’t need a mat,” and walked away. Plaintiff was forced to sleep on a
bare metal bunk. He asked the gallery officer and Doe for a mattress, but they denied his
requests. After several days of sleeping on a metal bunk, he began experiencing lower

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back pain.
Plaintiff went to sick call for back pain on several occasions. Plaintiff did not
receive a mattress until he went to segregation for an unrelated incident on October 11,
2019. Plaintiff’s back pain did resolve on its own and a doctor prescribed physical
therapy on October 29, 2019.
Preliminary Dismissal
Plaintiff’s request for a preliminary and permanent injunction ordering the
termination of John Doe’s employment with IDOC will be dismissed with prejudice as it
is not relief that this Court has the authority to grant.
Plaintiff seeks to make a claim against John Doe in both his individual and official
capacities. Because Plaintiff seeks monetary damages, and his request for injunctive relief
is being dismissed, any claim(s) will proceed against John Doe only in his individual
capacity and the official capacity claim will be dismissed. See Brown v. Budz, 904 F.3d 904,
918 (7th Cir. 2005) (claim for monetary damages must be brought against defendant in
his individual capacity only); Power v. Summers, 226 F.3d 815, 818 (7th Cir. 2000) (official
capacity claim against an individual is really a lawsuit for money damages against the
State, which is barred by the Eleventh Amendment and the doctrine of sovereign
immunity).
Discussion
Based on the allegations in the Complaint, the Court designates the following
claims in this pro se action:
Count 1:

Eighth

Amendment

unconstitutional
2

conditions

of

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confinement claim against John Doe for depriving Plaintiff of
a mattress and forcing him to sleep on a metal bunk.
Count 2:

Fourteenth Amendment deprivation of property claim
against John Doe for depriving Plaintiff of a mattress.
Count 1

“[P]risons must provide inmates with ‘the minimal civilized measure of life's
necessities.’” Hardeman v. Curran, 933 F.3d 816, 820 (7th Cir. 2019) (quoting Rhodes v.
Chapman, 452 U.S. 337, 347 (1981)). The Seventh Circuit has interpreted this general
statement as a requirement that prisons provide inmates with “reasonably adequate
ventilation, sanitation, bedding, hygienic materials, and utilities.” Id. The allegations in
the Complaint, while marginally adequate, are sufficient to proceed on the claim in
Count 1 against John Doe.
Count 2
As an initial matter, the mattress is the property of IDOC, not Plaintiff, which
would defeat any property deprivation claim. Further, if the state provides an adequate
remedy for the deprivation of property, Plaintiff has no civil rights claim. Hudson v.
Palmer, 468 U.S. 517, 530–36 (1984) (availability of damages remedy in state claims court
is an adequate, post-deprivation remedy). In that vein, the Seventh Circuit has found
that Illinois provides an adequate post-deprivation remedy in an action for damages in
the Illinois Court of Claims. Murdock v. Washington, 193 F.3d 510, 513 (7th Cir. 1999);
Stewart v. McGinnis, 5 F.3d 1031, 1036 (7th Cir. 1993); 705 Ill. Comp. Stat. 505/8 (1995).
For these reasons, Count 2 will be dismissed with prejudice.
Identification of Doe Defendant
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Anthony Wills, Warden of Menard Correctional Center, will be added as a
defendant, in his official capacity only, for purposes of responding to discovery aimed at
identifying the Doe defendant. See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816,
832 (7th Cir. 2009); Fed. R. Civ. P. 21. Guidelines for discovery will be set by the
undersigned. Once the name of the Doe Defendant is discovered, Plaintiff shall file a
motion to substitute the newly identified defendant in place of the generic designations
in the case caption and throughout the Complaint.
Disposition
The Complaint survives review under 28 U.S.C. § 1915A in part and is dismissed
in part as follows:
The injunctive relief and official capacity claims are DISMISSED with prejudice.
Count 1 will proceed against John Doe but Count 2 is DISMISSED with
prejudice. The Clerk of Court is DIRECTED to ADD Anthony Wills, Warden of Menard
Correctional Center (official capacity) to the docket for purposes of responding to
discovery aimed at identifying the Doe defendant.
The Clerk of Court shall prepare for Anthony Wills, Warden of Menard
Correctional Center (official capacity): (1) Form 5 (Notice of a Lawsuit and Request to
Waive Service of a Summons), and (2) Form 6 (Waiver of Service of Summons). The Clerk
is DIRECTED to mail these forms, a copy of the Complaint, and this Memorandum and
Order to Defendant’s place of employment as identified by Plaintiff. If a Defendant fails
to sign and return the Waiver of Service of Summons (Form 6) to the Clerk within 30 days
from the date the forms were sent, the Clerk shall take appropriate steps to effect formal
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service on the Defendant, and the Court will require the Defendant to pay the full costs
of formal service, to the extent authorized by the Federal Rules of Civil Procedure.
If a Defendant cannot be found at the work address provided by Plaintiff, the
employer shall furnish the Clerk with the Defendant’s current work address, or, if not
known, the Defendant’s last-known address. This information shall be used only for
sending the forms as directed above or for formally effecting service. Any documentation
of the address shall be retained only by the Clerk and shall not be maintained in the court
file or disclosed by the Clerk.
Service shall not be made on the Doe Defendant until such time as Plaintiff has
identified that individual by name in a properly filed motion for substitution. Plaintiff is
ADVISED that it is his responsibility to provide the Court with the name and service
address for this individual.
Defendant 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 Administrative Order No. 244, Defendant need only respond to the issues stated in this
Merit Review Order. Because the Warden of Menard Correctional Center is in the case
solely for discovery purposes, the Warden need not respond to the Complaint. The
Warden only needs to enter an appearance and will receive further instruction on
discovery at a later date.
Plaintiff is ADVISED that if judgment is rendered against him and the judgment
includes the payment of costs under 28 U.S.C. §1915. See 28 U.S.C. § 1915(f)(2)(A).
Plaintiff is further ADVISED that he is under a continuing obligation to keep the
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Clerk of Court and the 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).
Based on the allegations in the Complaint, the Clerk of Court is DIRECTED to
enter the standard qualified protective order pursuant to the Health Insurance Portability
and Accountability Act.
IT IS SO ORDERED.
DATED: November 18, 2021

__________________________
David W. Dugan
United States District Judge

Notice to Plaintiff
The Court will take the necessary steps to notify the appropriate defendants of your
lawsuit and serve them with a copy of your complaint. After service has been achieved,
the defendants will enter their appearance and file an Answer to the complaint. It will
likely take at least 60 days from the date of this Order to receive the defendants’ Answers,
but it is entirely possible that it will take 90 days or more. When all of the defendants
have filed Answers, the Court will enter a Scheduling Order containing important
information on deadlines, discovery, and procedures. Plaintiff is advised to wait until
counsel has appeared for the defendants before filing any motions, to give the defendants
notice and an opportunity to respond to those motions. Motions filed before defendants’
counsel has filed an appearance will generally be denied as premature. Plaintiff need not
submit any evidence to the Court at his time, unless otherwise directed by the Court.

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The Court wishes to remind the Plaintiff that litigation is often viewed a series of hurdles
that the Plaintiff must clear to get to another hurdle. Initial screening is such a hurdle, but
it is a very low one for the Plaintiff to clear. As noted above, surviving initial screening
only requires the bare statement of a claim that, if proven, could entitle Plaintiff to some
relief. At trial, they will need to prove by a preponderance of evidence that the facts
alleged actually occurred and that those facts satisfy the legal requirements for recovery.
Trial is the highest and most difficult of hurdles for any Plaintiff to clear.

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