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Malone v. Zuercher

November 16, 2007


The opinion of the court was delivered by: Harold A. Baker United States District Judge


This cause is before the court for a merit review of the plaintiff's claims. The court is required by 28 U.S.C. §1915A to "screen" the plaintiff's complaint, and through such process to identify and dismiss any legally insufficient claim, or the entire action if warranted. A claim is legally insufficient if it "(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief."

28 U.S.C. §1915A. The plaintiff participated in the merit review hearing by telephone conference call.


The plaintiff has filed his lawsuit pursuant to 42 U.S.C. §1983 claiming his constitutional rights were violated. However, since the plaintiff was a federal prisoner at the time of the allegations in his complaint and his defendants are all employees of the Federal Correctional Institution in Pekin, his lawsuit is actually filed pursuant to Bivens v.Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). The plaintiff has named 14 defendants including Warden J.C. Zuercher, Regional Director Michael K. Nalley, Regional Counsel Richard Schott, Mr. Diltelman, Clinical Director S. Moats, Dr. A. Molina, Case Manager J. Richardson, Unit Manager S. L. Wheeler, Unit Counselor Larry Gerber, Secretary Terry Garrett, Correctional Officers Fisher and John Doe, Federal Bureau of Prisons Director Harley Lappin and Attorney General Alberto Gonzales. The plaintiff is suing the defendants in their individual and official capacities.

The plaintiff's complaint states that he has chronic asthma. The plaintiff was incarcerated at the Federal Correctional Institution in Pekin and he says the facility is designated as a smoke free environment. Cigarettes found on inmates are considered contraband. Nonetheless, the plaintiff says several defendants smoked dozens of cigarettes at the entrance and exit doors to his housing unit and/or the food service entrance. The plaintiff says he had to walk by this area several times a day and the smoke aggravated his asthma condition. The plaintiff says he had to use an inhaler and receive other medication due to the second hand smoke. The plaintiff has adequately alleged that the defendants violated his Eighth Amendment rights when they were deliberately indifferent to his serious medical condition.

The next question is whether the named defendants were directly involved in the plaintiff's claims. "(A) defendant's direct personal responsibility for the claimed deprivation of a constitutional right must be established in order for liability to arise under 42 U.S.C. §1983." Duncan v. Duckworth, 644 F.2d 653, 655 (7th Cir. 1981). In addition, the doctrine of respondeat superior (supervisor liability) does not apply. Pacelli v. DeVito, 972 F.2d 871, 877 (7th Cir. 1992). "(A) supervising prison official cannot incur §1983 liability unless that officer is shown to be personally responsible for a deprivation of a constitutional right." Vance v Peters, 97 F.3d 987, 992 (7th Cir. 1996).

The plaintiff states that Defendants Gerber, Richardson, Garrett, Fisher and John Doe smoked dozens of cigarettes in his presence even though they knew it was impacting his asthma. The plaintiff says he told Defendants Lappin, Nalley, Wheeler, Moats and Zuercher about the problem, but they took no action. The plaintiff says Defendants Diltelman and Dr. Molina either provided treatment for the plaintiff or knew about the treatment he was receiving and took no action to stop the problem. The plaintiff has adequately stated claims against each of these individuals. However, the plaintiff does not state any personal involvement by Defendants Regional Counsel Schott and Attorney General Gonzales. The mere fact that both have supervisory roles is not enough. The court must therefore dismiss these two defendants.

The court must also dismiss the plaintiff's official capacity claims. Section 1983 allows a civil action for damages based on the violation of a constitutional right. Bivens, 403 U.S. at 395-96. However, a suit against a federal agency or federal official in his or her official capacity is actually a claim against the United States. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989). The doctrine of sovereign immunity shields the United States from such suits unless it has given its consent to waive this immunity. F.D.I.C. v Meyer, 510 U.S. 471, 477-78 (1994). Therefore, the court lacks jurisdiction over the plaintiff's official capacity claims and those claims must be dismissed.

Finally, the court notes that the plaintiff's complaint states that he is suing pursuant to other federal and state laws. However, the only specific allegation in the plaintiff's complaint is a violation of his Eighth Amendment right. The plaintiff has not adequately alleged any other violation and his complaint does not properly put the defendants on notice of any other violation.


The plaintiff has also filed two motions for appointment of counsel. [d/e 3, 11]. Civil litigants have no federal right to appointed counsel. The district court may request appointment of counsel under 28 U.S.C. § 1915(e)(1), but cannot force an attorney to accept appointment. Luttrell v. Nickel, 129 F.3d 933, 936 (7th Cir.1997). To decide whether counsel should be requested, the court asks, "'[G]iven the difficulty of the case, [does] the plaintiff appear to be competent to try it himself and, if not, would the presence of counsel [make] a difference in the outcome?'" Zarnes v. Rhodes, 64 F.3d 285, 288 (7th Cir. 1995). "Although a good lawyer may [do better than a pro se plaintiff], that is not the test, for if it was "'district judges would be required to request counsel for every indigent litigant.'" Luttrell, 129 F.3d at 936. Here, the plaintiff has been released from custody and has not shown what efforts he has made since his release to secure his own counsel. The plaintiff's motions are denied. The court instructed the plaintiff that any future motion should include a statement of the efforts he has made to retain counsel. At this point, based on the plaintiff's submissions and participation in the merit review hearing, he appears competent to proceed pro se.

The plaintiff has also filed a motion for class certification. [d/e 16] The motion is denied. First, the plaintiff is not represented by an attorney and does not claim that he is personally an attorney. Since absent class members are bound by a judgment whether for or against the class, they are entitled at least to the assurance of competent representation afforded by licensed counsel. Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir.1975); see also Ethnic Awareness Organization v. Gagnon, 568 F.Supp. 1186, 1187 (E.D.Wis.1983); Huddleston v. Duckworth, 97 F.R.D. 512, 514-15 (N.D.Ind.1983)(prisoner proceeding pro se not allowed to act as class representative).

Second, even lawyers may not act both as class representative and as attorney for the class because that arrangement would eliminate the checks and balances imposed by the ability of the class representatives to monitor the performance of the attorney on behalf of the class members. See e.g., Sweet v. Bermingham, 65 F.R.D. 551, 552 (1975); Graybeal v. American Saving & Loan Ass'n, 59 F.R.D. 7, 13-14 (D.D.C.1973); see also Susman v. Lincoln American Corp., 561 F.2d 86, 90 n. 5 (7th Cir.1977), appeal after remand, 587 F.2d 866 (1978), cert. denied, 445 U.S. 942, 100 S.Ct. 1337, 63 L.Ed.2d 775 (1980); Conway ...

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