Perigo v. Madison County Jail et al

Filing 15

ORDER FOR SERVICE OF PROCESS on RICHERT, HARING, WALLENDORFF, GEGGUS, and DECKER. The 7 Complaint survives screening under 28 U.S.C. 1915A. COUNT 1 against RICHERT and COUNT 3 against HARING, WALLENDORFF, GEGGUS, and DECKER shall proceed. COUNTS 2 and 4 against ALL DEFENDANTS are DISMISSED without prejudice. MADISON COUNTY JAIL is also DISMISSED with prejudice. Plaintiff's 9 Motion to Appoint Counsel is DENIED. The Clerk's Office is DIRECTED to TERMINATE the MADISON COUNTY JAIL as a party in CM/ECF. Signed by Judge J. Phil Gilbert on 11/18/2022. (jsy)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
STEPHEN SCOTT PERIGO, B08636,

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Plaintiff,
vs.
MADISON COUNTY JAIL,
SERGEANT RICHERT,
DEPUTY HARING,
DEPUTY WALLENDORFF,
DEPUTY GEGGUS,
and DEPUTY DECKER,
Defendants.

Case No. 22-cv-01540-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff Stephen Perigo, an inmate in the custody of the Illinois Department of Corrections
and currently incarcerated at Graham Correctional Center, brings this civil rights action pursuant
to 42 U.S.C. § 1983 for constitutional deprivations that occurred during his pretrial detention at
Madison County Jail. In the Complaint, Plaintiff claims he was subjected to excessive force when
he requested placement on suicide watch at Madison County Jail on September 14, 2021. (Doc. 7,
pp. 1-24). He sues the defendants for money damages. (Id. at 20).
The Complaint is subject to preliminary review pursuant to 28 U.S.C. § 1915A, which
requires the Court to screen prisoner complaints to filter out non-meritorious claims. See 28 U.S.C.
§ 1915A(a). Any portion of a complaint that is legally frivolous, malicious, meritless, 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). At this juncture, the factual allegations of the pro se complaint are to be
liberally construed. Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).

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The Complaint
The Complaint sets forth the following allegations (Doc. 7, pp. 15-19): Plaintiff became
distraught after he was arrested and detained at Madison County Jail on September 14, 2020.
(Id. at 14). He asked Sergeant Richert to place him on suicide watch. (Id. at 15). Plaintiff was
instead taken to the shower room and ordered to remove all clothing. When he failed to do so
quickly enough, Sergeant Richert sprayed him in the eyes with mace and denied him adequate
time to wash the powerful chemical agent from his face. (Id.).
Plaintiff was then placed in the female visitor’s room with no running water, toilet, or food.
(Id. at 15-16). When he asked for food at lunchtime, his request was denied. (Id. at 16). When
he repeatedly asked to use the restroom two hours after his arrival, the deputies ignored or denied
his requests. To get their attention, Plaintiff began kicking the glass door. Although he had no
intentions of breaking it, the glass door shattered when he kicked it. (Id.).
Deputies Haring, Geggus, Wallendorff, and Decker ordered Plaintiff to leave the room.
They took him to another room, referred to as the “hole.” (Id. at 17). Deputy Haring then grabbed
Plaintiff’s wrist, raised it above his head, and pulled his arm behind his back. He then slammed
Plaintiff to the ground. This caused the plaintiff severe pain. While on the ground looking up at
the deputies, they sprayed mace in his face “without merit or justification.” (Id.). Deputy Haring
then kicked Plaintiff in the lower back and told Plaintiff that he was being charged with aggravated
battery. (Id.).
After the deputies left the room, they turned off the water. (Id. at 18). The only water
available to rinse Plaintiff’s face was toilet water. When he asked the deputies to turn on the water,
they refused to do so twice. He used toilet water to wash his face, but his eyes continued to burn
for another three hours. When he asked to see a nurse about the burning sensation and the exposure

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to toilet water, his request was denied. Another twelve hours passed before he was allowed to
shower. (Id.).
Discussion
Based on the allegations, the Court finds it convenient to designate the following
enumerated counts in the pro se Complaint:
Count 1:

Fourteenth Amendment claim against Sergeant Richert for
responding to Plaintiff’s request for placement on suicide watch by
spraying him directly in the eyes with mace on September 14, 2020.

Count 2:

Fourteenth Amendment claim against Defendants for placing
Plaintiff in the female visitor’s room with no running water, toilet,
restroom access, or food for two hours on September 14, 2020.

Count 3:

Fourteenth Amendment claim against Haring, Geggus, Wallendorff,
and Decker for using excessive force against Plaintiff by slamming
him to the floor, kicking him, spraying him with mace, and denying
him clean water to rinse the mace from his face and body while he
was in the “hole” on September 14, 2020.

Count 4:

Fourteenth Amendment claim against Defendants for denying
Plaintiff’s request to see the nurse about the burning sensation
caused by the mace and about his exposure to disease caused by the
toilet water he used to wash his face on September 14, 2020.

Any other claim that is mentioned in the Complaint but not addressed herein is considered
dismissed without prejudice as inadequately pled under Twombly. 1
Counts 1 through 4
The Fourteenth Amendment Due Process Clause prohibits all forms of punishment of
pretrial detainees. See Kingsley v. Henderson, 576 U.S. 389 (2015); Miranda v. County of Lake,
900 F.3d 335, 350 (7th Cir. 2018). To state a claim under the Fourteenth Amendment, a pretrial
detainee must set forth facts suggesting that each defendant “acted purposefully, knowingly, or

See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (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”).

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perhaps even recklessly” in response to conditions posing an excessive risk to his health or safety
and that the defendant’s actions were “objectively unreasonable.” Miranda, 900 F.3d at 352-54.
Plaintiff’s allegations suggest that Sergeant Richert knowingly or purposefully responded to an
obvious risk of suicide by spraying Plaintiff in the face with mace (Count 1), and Haring,
Wallendorff, Geggus, and Decker acted in an objectively unreasonable manner by slamming him
to the floor, kicking him in the back, spraying him with mace, and denying him water to rinse the
mace from his face while he was in the “hole” (Count 3). Counts 1 and 3 shall receive further
review against the defendants named in connection with these claims.
The same cannot be said of Plaintiff’s claim of unconstitutional conditions of confinement
in Count 2. According to the allegations, Plaintiff was placed in the female visitor’s room on
suicide watch and denied access to running water, food, and toilets for two hours. These
allegations describe a minor inconvenience, not a constitutional deprivation. Moreover, Plaintiff
does not attribute the denial of water, food, or toilets to any individual defendants. It is not even
clear whether any of them were aware of the short-term deprivations. Count 2 shall be dismissed
for failure to state any claim for relief against the defendants.
Count 4 likewise fails to implicate any individual defendants. Plaintiff merely alleges that
his request for a nurse was denied. He does not state who denied the request. Here again, the
Court cannot determine whether any of the defendants were involved in the decision to deny
medical care. Count 4 shall also be dismissed for failure to state a claim against the defendants.
Madison County Jail
Madison County Jail shall be dismissed as well. The Jail is not a proper defendant in a
§ 1983 suit. Smith v. Knox Cnty. Jail, 666 F.3d 1037, 1040 (7th Cir. 2012); Powell v. Cook Cnty.
Jail, 814 F. Supp. 757, 758 (N.D. Ill. 1993). The Jail is not even considered a legal entity. A

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defendant named in a lawsuit must have legal capacity to be sued. See FED. R. CIV. P. 17(b). When
determining whether an entity has the legal capacity to be sued, federal courts look to state law.
Magnuson v. Cassarella, 812 F. Supp. 824, 827 (N.D. 1992). The county jail is not considered a
suable entity under Illinois law. Isaacs v. St. Clair Cnty. Jail, No. 08-cv-417-DRH, 2009 WL
211158, at *3-4 (S.D. Ill. Jan. 29, 2009); Hedger v. HCP, No. 18-cv-2081-JPG, 2019 WL 117986,
at *2 (S.D. Ill. Jan. 7, 2019). Accordingly, the Jail shall be dismissed with prejudice.
To the extent that Plaintiff intended to sue Madison County, his claim also fails. A local
government body, such as a county, can be held liable under § 1983, if (a) it had an express policy
calling for a constitutional violation; (b) it had a widespread practice of constitutional violations
that was so permanent and well settled as to constitute custom or usage with the force of law; or
(c) a person with final policymaking authority for the body caused the constitutional violation.
Monell v. Department of Soc. Servs., 436 U.S. 658, 694 (1978); McCormick v. City of Chi., 230
F.3d 319, 324 (7th Cir. 2000). The allegations do not suggest that the plaintiff’s injuries resulted
from a policy, custom, or widespread practice attributable to the county.
Pending Motion
Plaintiff’s Motion to Appoint Counsel (Doc. 9) is DENIED without prejudice. When
presented with a request for counsel by an indigent plaintiff, the district court consider, first,
whether the plaintiff has made reasonable attempts to find and attorney and, if so, “whether the
difficulty of the case—factually and legally—exceeds the particular plaintiff’s capacity as a
layperson to coherently present it.” Navejar v. Iyiola, 718 F.3d 692, 696 (7th Cir. 2013) (quoting
Pruitt v. Mote, 503 F.3d 647, 655 (7th Cir. 2007)). Plaintiff has not satisfied either one of the
Pruitt factors.

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Plaintiff indicates that he has made no efforts to find counsel in this case because he is
incarcerated and was unable to find an attorney when looking for one in 2016. The Court finds
Plaintiff’s efforts woefully inadequate. The fact that he is incarcerated does not prevent him from
searching for an attorney. He should attempt to contact at least three attorneys or law firms to
request representation in this particular case. Plaintiff may use telephone, email, electronic, or
written communication to do so. If he files a new motion for recruitment of counsel, he should
provide the Court with proof of his efforts, including the names of all attorneys contacted, the dates
of each contact, and the response he received.
In the meantime, he has access to the law library once a week, and he may request any
extensions of deadlines in this case by filing a written “motion for extension” prior to the given
deadline. The Court generally permits reasonable extensions in pro se cases.
Until then, this case is factually and legally straightforward. It involves two claims arising
under the Fourteenth Amendment. The applicable legal standard for his claim is set forth above.
Plaintiff’s filings to date demonstrate his ability to prepare and file pleadings in this case, as
litigation proceeds. If it becomes too complicated, Plaintiff may renew his request for counsel by
filing a new motion that includes proof of his efforts to find counsel on his own before turning to
the court for help.
Disposition
IT IS ORDERED that the Complaint (Doc. 7) survives screening under 28 U.S.C.
§ 1915A. COUNT 1 against RICHERT and COUNT 3 against HARING, WALLENDORFF,
GEGGUS, and DECKER shall receive further review.
IT IS ORDERD that COUNTS 2 and 4 against ALL DEFENDANTS are DISMISSED
without prejudice for failure to state a claim. Defendant MADISON COUNTY JAIL is also
DISMISSED with prejudice, and the Clerk’s Office is DIRECTED to TERMINATE the
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MADISON COUNTY JAIL as a party in CM/ECF.
The

Clerk

of

Court

shall

prepare

for

Defendants

RICHERT,

HARING,

WALLENDORFF, GEGGUS, and DECKER: (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 (Doc. 7), and this Memorandum and
Order to each 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 service on that
defendant, and the Court will require that defendant to pay the full costs of formal service, to the
extent authorized by the Federal Rules of Civil Procedure.
If a defendant can no longer be found at the work address provided by Plaintiff, the
employer shall furnish the Clerk with that defendant’s current work address, or his or her lastknown 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.
Address information shall not be maintained in the court file or disclosed by the Clerk.
Defendants are 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, Defendants need only respond to the issues stated in this
Merits Review Order.
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

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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: 11/18/2022
s/ J. Phil Gilbert
J. PHIL GILBERT
United States District Judge

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Notice
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 defendant will
enter her appearance and file an Answer to your complaint. It will likely take at least 60 days from
the date of this Order to receive the defendant’s Answer, but it is entirely possible that it will take
90 days or more. The Court will then enter a Scheduling Order containing important information
on deadlines, discovery, and procedures. Plaintiff is advised to wait until counsel has appeared for
the defendant before filing any motions, in order to give the defendant notice and an opportunity
to respond to those motions. Motions filed before the defendant’s counsel has filed an appearance
will generally be denied as premature. The plaintiff need not submit any evidence to the court at
this time, unless otherwise directed by the Court.

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