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Jovan Battle (#2011-1204078 v. Tom Dart

United States District Court, Northern District of Illinois


May 23, 2012

JOVAN BATTLE (#2011-1204078)
v.
TOM DART, ET AL.

Name of Assigned Judge Sitting Judge if Other or Magistrate Judge George W. Lindberg than Assigned Judge

CASE

TITLE

DOCKET ENTRY TEXT:

Plaintiff's motion for leave to file in forma pauperis [#3] is granted. The Court authorizes and orders the trust fund officer at the Cook County Jail to collect monthly payments from Plaintiff's trust fund account in accordance with this order. The Clerk is directed to forward a copy of this order to Supervisor of Inmate Trust Fund Accounts, Cook County Dept. of Corrections Administrative Office, Division V, 2700 S. California, Chicago, IL 60608. The Clerk is directed to issue summons for Defendant Dart, and the United States Marshals Service is appointed to serve him. Defendant Dart remains as a Defendant solely for the purpose of identifying the John Doe Defendants. The Clerk shall send Plaintiff Instructions for Submitting Documents, along with a copy of this order. Plaintiff's motion for appointment of counsel [#5] is denied.

O [For further details see text below.] Docketing to mail notices.

STATEMENT

Plaintiff, Jovan Battle, presently in custody of the Cook County Jail, has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff claims that on or about March 21, 2012, there was a fire in his cell-house and he was exposed to heavy white smoke for over thirty minutes, suffering from smoke inhalation. Plaintiff further alleges that he has been unable to receive adequate medical care for the resulting injuries to his lungs. Plaintiff names Cook County Sheriff Tom Dart, Cermak Health Services, and Cook County Correctional Facility Staffing, as well as several John Doe Defendants.

Plaintiff's motion for leave to proceed in forma pauperis is granted. Pursuant to 28 U.S.C. § 1915(b)(1), the plaintiff is assessed an initial partial filing fee of $7.01. The supervisor of inmate trust accounts at the Cook County Jail is authorized and ordered to collect, when funds exist, the partial filing fee from Plaintiff's trust fund account and pay it directly to the Clerk of Court. After payment of the initial partial filing fee, the trust fund officer at Plaintiff's place of confinement is directed to collect monthly payments from Plaintiff's trust fund account in an amount equal to 20% of the preceding month's income credited to the account. Monthly payments collected from Plaintiff's trust fund account shall be forwarded to the Clerk of Court each time the amount in the account exceeds $10 until the full $350 filing fee is paid. All payments shall be sent to the Clerk, United States District Court, 219 S. Dearborn St., Chicago, Illinois 60604, attn: Cashier's Desk, 20th Floor, and shall clearly identify Plaintiff's name and the case number assigned to this action. The Cook County inmate trust account office shall notify transferee authorities of any outstanding balance in the event Plaintiff is transferred from the jail to another correctional facility.

Under 28 U.S.C. § 1915A, the Court is required to conduct a prompt initial review of prisoner complaints against governmental entities or employees. Here, accepting Plaintiff's factual allegations as true, Plaintiff has alleged a valid claim for deliberate indifference to a substantial risk of serious harm. See, e.g., Rapier v. Harris, 172 F.3d 999, 1002 (7th Cir. 1999), relying on Bell v. Wolfish, 441 U.S. 520, 535 (1979). The Court further finds that the complaint states a colorable cause of action under the Civil Rights Act for deliberate indifference to a serious medical need. Davis v. Carter, 453 F.3d 686, 696 (7th Cir. 2006).

However, Plaintiff has failed to state a cause of action against any named Defendant. Plaintiff makes his claims against Defendant Dart in his supervisory capacity. Plaintiff has alleged no facts suggesting Dart's direct, personal involvement, as required by J.H. ex rel. Higgin v. Johnson, 346 F.3d 788, 793 (7th Cir. 2003), inter alia. Nor has Plaintiff indicated that the alleged violation of his constitutional rights occurred at Dart's direction or with his knowledge and consent. Id. Section 1983 creates a cause of action based on personal liability and predicated upon fault; thus, "to be liable under § 1983, an individual defendant must have caused or participated in a constitutional deprivation." Pepper v. Village of Oak Park, 430 F.3d 809, 810 (7th Cir. 2005) (citations omitted).

The mere fact that Defendant Dart holds a supervisory position is insufficient to establish liability, as the doctrine of respondeat superior (blanket supervisory liability) does not apply to actions filed under 42 U.S.C. § 1983. See Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001). Section 1983 does not create collective or vicarious responsibility. Id. Supervisors cannot be held liable for the errors of their subordinates. Birch v. Jones, No. 02 C 2094, 2004 WL 2125416, at *6 (N.D. Ill. Sep. 22, 2004) (Manning, J.), citing Pacelli v. DeVito, 972 F.2d 871, 877 (7th Cir. 1992). "Supervisors who are merely negligent in failing to detect and prevent subordinates' misconduct are not liable." Chavez v. Illinois State Police, 251 F.3d 612, 651 (7th Cir. 2001) (citations omitted). To be held liable under 42 U.S.C. § 1983, supervisors "must know about the conduct and facilitate it, approve it, condone it, or turn a blind eye for fear of what they might see. They must in other words act either knowingly or with deliberate, reckless indifference." Id. In short, some causal connection or affirmative link between the action complained about and the official sued is necessary for § 1983 recovery. Hildebrandt v. Illinois Dept. of Natural Resources, 347 F.3d 1014, 1039 (7th Cir. 2003). Because Plaintiff has failed to state any facts suggesting that Defendant Dart was personally involved in--or even aware of--the alleged circumstances giving rise to the complaint, he has failed to state a claim against him.

With respect to Defendant Cermak Health Services and Cook County Correctional Facility Staffing, to the extent that such a subdivision exists at the Cook County Jail, they are not suable entities. See Castillo v. Cook County Mail Room Dept., 990 F.2d 304, 307 (7th Cir. 1993). Accordingly, they are dismissed as Defendants.

While Plaintiff has failed to state a claim against Defendant Dart, he is not dismissed as a Defendant. Plaintiff names several John Doe Defendants. (See Plaintiff's complaint). Plaintiff must name as Defendants the individual correctional officers and doctors who were allegedly deliberately indifferent to his safety and serious medical condition. If Plaintiff cannot name the individual security and medical personnel, he can name a supervisory official such as Tom Dart for the purpose of identifying unknown defendants. See Donald v. Cook County Sheriff's Dept., 95 F.3d 548, 556 (7th Cir. 1996); Billman v. Indiana Dept. of Corrections, 56 F.3d 785, 789-90 (7th Cir. 1995). Thus, Dart remains as a Defendant only to the extent that he is necessary to assist Plaintiff in identifying the unnamed correctional and medical personnel.

Plaintiff is advised to conduct discovery as soon as possible to obtain the names of the correctional and medical personnel in question. The statute of limitations for Section 1983 actions filed in Illinois is two years. See 735 ILCS § 5/13-202; Henderson v. Bolanda, 253 F.3d 928, 931 (7th Cir. 2001), citing Ashafa v. City of Chicago, 146 F.3d 459, 462 (7th Cir. 1998). In this circuit, a Plaintiff cannot invoke the relation back principles of Rule 15(c) to replace John Doe Defendants with named Defendants after the statute of limitations has expired. See Worthington v. Wilson, 8 F.3d 1253, 1256-57 (7th Cir. 1993); see also Wood v. Worachek, 618 F.2d 1225, 1230 (7th Cir. 1980).

The Clerk shall issue a summons for service of the complaint on Defendant Dart (hereinafter, "Defendant"). The Clerk shall also send Plaintiff a Magistrate Judge Consent Form and Instructions for Submitting Documents along with a copy of this order.

The United States Marshals Service is appointed to serve Defendant Dart. Any service forms necessary for Plaintiff to complete will be sent by the Marshal as appropriate to serve Defendant Dart with process. The U.S. Marshal is directed to make all reasonable efforts to serve Defendant. The information shall be used only for purposes of effectuating service [or for proof of service, should a dispute arise] and any documentation of the address shall be retained only by the Marshal. Address information shall not be maintained in the Court file, nor disclosed by the Marshal. The Marshal is authorized to mail a request for waiver of service to Defendant in the manner prescribed by FED. R. CIV. P. 4(d)(2) before attempting personal service.

Plaintiff is instructed to file all future papers concerning this action with the Clerk of Court in care of the Prisoner Correspondent. Plaintiff must provide the Court with the original plus a complete judge's copy, including any exhibits, of every document filed. In addition, Plaintiff must send an exact copy of any Court filing to Defendant [or to defense counsel, once an attorney has entered an appearance on behalf of Defendant]. Every document filed with the Court must include a certificate of service stating to whom exact copies were mailed and the date of mailing. Any paper that is sent directly to the judge or that otherwise fails to comply with these instructions may be disregarded by the Court or returned to Plaintiff.

Plaintiff has also filed a motion for appointment of counsel. The motion is denied. Plaintiff has no right to counsel. See Romanelli v. Suliene, 615 F.3d 847, 851 (7th Cir. 2010); Johnson v. Doughty, 433 F.3d 1001, 1006 (7th Cir. 2006). Plaintiff has proven himself able to adequately represent himself thus far. The case at the present time does not involve complex discovery or an evidentiary hearing, and Plaintiff's current pleadings indicate that he has the presence of mind and intellectual capability to continue representing himself at this stage of the proceedings. Accordingly, his motion for the appointment of counsel is denied without prejudice. See Pruitt v. Mote, 503 F.3d 647, 656-59. (7th Cir. 2007). Consequently, the Court denies his motion without prejudice to renewal should the case proceed to a point that assistance of counsel is appropriate.

20120523

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